About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 129
|
|
Jansen NO and Others v Ringwood Investments 87 CC (59771/2009) [2013] ZAGPPHC 129 (20 May 2013)
IN
THE NORTH GAUTENG HIGH COURT-PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
DATE: 20 May 2013
CASE NO: 59771/2012
In
the matter between:
JACOBUS
FRANCOIS JANSEN
N.O.
.........................................................................
1st
APPLICANT
CORNELIA
JOANA JANSEN N.O .
…..........................................................................
2nd
APPLICANT
CORNELIUS
JOHANNES PETRUS GERHARDUS
MALAN
N.O.
…..............................................................................................................
3rd APPLICANT
JACOBUS
MARTHINUS BROODERYK N.O.
…........................................................
4th
APPLICANT
(in
their capacities as the duly authorised appointed trustees
of
the JDH E1ENDOMSTRUST (No IT1465/2010
and
RINGWOOD
INVESTMENTS 87
CC
.........................................................................
1st
RESPONDENT
VAN
RENSBURG'S ATTORNEYS,
ROODEPOORT
................................................
2nd
RESPONDENT
N
V KHUMALO AJ
INTRODUCTION
[1]
The Applicants, as the duly authorised trustees of the JDH
Eiendomstrust ("the trust") launched an Application seeking
an order:-
[1.1]
declaring that the sale agreement concluded between the Trust and the
1st Respondent is void ab initio and unenforcable;
[1.2]
that the 2nd Respondent is to pay to the Applicants the sum of R2
000,000.00 together with any and/or all interest that may
have
accrued upon the aforesaid amount since its deposit with the 2nd
Respondent on behalf of the trust and/or investment pursuant
to the
conclusion of the purported sale agreement between the Applicant and
1st Respondent;
[1.3]
that the costs of the urgent Application served by the 1st to 4th
Applicants under case number 56377/2012 be paid by the 1st
Respondent;
[1.4]
Further or alternative relief.
[2]
The relief sought as against the 2nd Respondent, was said to be for
only in so far as they still held the sum of R2 000,000.00
that forms
the subject matter of this Application in their trust account in
terms of an undertaking they provided on behalf of
the 1st
Respondents to the Applicants prior to the institution of the
Application.
BACKGROUND FACTS
[3]
On 12 June 2012 First Applicant in his capacity as a trustee
concluded the sale agreement ("the agreement") with the
1st
Respondent purchasing an immovable property described as Portion 8 of
the Farm Goedenhoop 83, Registration Division KR, Province
of Limpopo
('the property") for a purchase price of R13 500,000.00.
[4]
The sale was subject to a payment of a deposit of R2 000,000.00 and a
suspensive condition, inter alia, that the trust is able
to raise a
loan of not less than Rll 500.000.00 within 30 days of signature of
the agreement.
[5]
The agreement also provided in Clause 6.2 an option for cancellation
by both parties in the event of default or repudiation
of the
agreement by either party. If cancellation is at the instance of the
seller, all amounts paid by or on behalf of the purchaser
were to be
forfeited unless the seller elects to claim dsm;jg< < ir lieu
of such forfeiture whereby they will be entitled
to hold such
amojrri:; pending determination of the amount of the damages by
agreement, or order of court.
[6]
The deposit was duly paid to 2nd Respondent, 1st Respondent's
erstwhile attorney that was responsible for registering the transfer.
The suspensive condition was however not fulfilled within the time
stipulated and Applicant's endeavours to secure the loan on
18th and
30 July 2012 post the expiry of the stipulated period failed to yield
any positive results. The receiver of revenue did
not agree to treat
the transaction as a zero rated vat transaction as well.
[7]
1st Respondent subsequently offered to extend the period of the
suspensive condition subject to Applicants agreeing that the
R1 000
000.00 of the deposit paid will be forfeited in the event that the
suspensive condition is not fulfilled during the extended
period.
[8]
The Applicants did not acquiesce to the demand and the request for an
extension was declined.
[9]
However, 1st Respondent refused that the deposit be paid back to the
Applicants on the ground that the Applicant has repudiated
the
contract.
[10]
2nd Respondent subsequently indicated that he will proceed to pay out
to 1st Respondent a portion or the whole of the deposit
of R2,000
000.00 in lieu of expenses, wasted costs and damages, resulting from
the repudiation unless Applicants approach the Honourable
Court to
obtain an order as per the relief sought in this Application.
[11]
As a result Applicants instituted an urgent Application that was
later withdrawn on agreement by the parties that the normal
course of
motion procedure be followed and 2nd Respondent furnish Applicants
with an undertaking not to pay out the deposit except
by order of
court.
APPLICATION
[12]
Applicant is seeking relief as prayed for on the ground that:
[12.1]
the agreement is void ab initio since the suspensive conditions under
the agreement were not fulfilled within the agreed
time period and
neither of the parties waived compliance with the suspensive
condition prior to the lapse of the 30 day period;
alternatively,
[12.2]
the agreement is not enforceable for the reasons that:
[12.2.1]
to terms of the trust's deed all necessary actions and authority of
the trustees was to be conducted by way of a joint
resolution.
[12.2.2]
the trust never adopted a resolution in writing authorising the First
Applicant to conclude the agreement.
[12.2.3]
neither of the non-signatory trustees signed authorisation to the
signatory trustee authorising the purchase of the property.
[12.2.4]
the agreement is struck with illegality due to non- compliance with
the requirements of the Alienation of Land Act ("the
Act).
[13]
1st Respondent filed in its answering affidavit, a counter-claim for
an order declaring:-
[13.1]
that the sale agreement was duly cancelled on 1 August 2012 or
alternatively that the agreement is cancelled;
[13.2]
that the deposit together with the interest accrued be forfeited to
the 1st Respondent in accordance with clause 6.2 of the
agreement,
alternatively, that First Respondent is entitled to hold the amount
pending determination of damages in an action that
First Respondent
was to institute within 30 days of this court's order in the main and
counter application; alternatively
[13.3]
that the 1st Respondent is entitled to hold the deposit pending
determination of the amount of damages;
[13.3]
that 1st Applicant pays the amount in his personal capacity with mora
interest;
[13.4]
the costs of this Application including that of an urgent application
be paid by the Applicants jointly and severally.
[14]
Whilst denying the allegations in Applicant's founding affidavit,
specifically that:
[14.1]
the agreement was purportedly concluded, stating that it was a duly
executed and properly signed agreement, but if it is
found to be
invalid the Applicant is not entitled and is prohibited from relying
on the invalidity on the basis of the rule in
pari delicto potior est
condictio possidentis,
[14.2]
Applicant is entitled to be paid back the deposit, stating that the
deposit has to be forfeited to it, in accordance with
clause 6.2.1 of
the agreement, either as an agreed amount to be forfeited to it or
pre-empted damages pursuant to the breach of
the agreement by the
Applicant and the consequent cancellation on 1 August 2012.
[14.3]
the agreement was void or void ab initio due to the suspensive
conditions not being fulfilled, stating that it was through
conduct
amounting to repudiation of the agreement by the trust, as such 1st
Respondent was entitled to cancel the contract, the
trust was remiss
in preparing and submitting its application for the loan which was
delayed and done after the period of the suspensive
condition as a
result declined.
[14.4]
it is a requirement in law that a trustee be authorised by resolution
in writing to conclude a written agreement in respect
of land,
stating that First Applicant acted in his capacity as a duly
authorised trustee in terms of his letters of authority by
the Master
and not as an agent contemplated in Section 2 (1) of the Alienation
of Land Act 68 of 1981 ("the Act"). So,
no written
authority by the trust to First Applicant was required.
[14.5]
8Also adding that no evidence is submitted that First Applicant acted
without the consent of the majority of the trustees
and ex facie the
document he appears to have been duly authorised, if point upheld,
1st Respondent reserves its right to claim
from First Applicant in
his personal capacity because of his apparent misrepresentation.
[15]
In support of its counter-application 1st Respondent alleges that it
has a real and valid apprehension that in the event of
the agreement
not being honoured by the trust and the forfeiture clause not coming
into effect, it will suffer irreparable harm
in excess of R2 890
000.00 in respect of its inability, due to the conclusion of the
written agreement of sale, to deliver 1700
tons of grass and hay
contracted to its neighbours and Driehoek Voe.
ISSUES TO BE DETERMINED
[16]
The principal issue to be ascertained is the validity of the
agreement, that is, if First Applicant, who acted without the
written
authority of the other trustees entered into a valid contract of sale
of land binding the trust, establishing as questioned
by 1st
Respondent if it is a requirement in law that a trustee be authorised
by resolution in writing to conclude a written agreement
in respect
of land.
[17]
If it is found that a valid contract have been concluded the next
enquiry is whether it became void ab initio due to the non-fulfilment
of the suspensive condition entitling the Applicants then to the
deposit or Applicant's non- fulfilment resulted into a breach
of
contract in terms of clause 6.2 of the agreement justifying a
forfeiture of the deposit and compensation of 1st Respondent for
damages resulting from such breach.
[18]
If it is found that no valid contract was entered into, then the
enquiry that follows is to ascertain if the pari deiicto potior
est
condictio possidentis rule ("the pari delicto rule") is
applicable against the trust as alleged by the 1st Respondent
and if
not, then if the First Applicant can be held personally liable for
his conduct as trustee.
[19]
Section 2 (1) of the Alienation of land Act 69 of 1981, ("the
Act") provides that:
"No
alienation of land shall, subject to the provisions of section 28, be
of force or effect unless it is contained in a deed
of alienation
signed by the parties thereto or by their agents on their written
authority."
[20]
Therefore basically, for a sale of land to be of force and effect
there must be a
(1)
A deed of alienation (agreement embodied in a document)
(2)
Signed by the parties, that is buyer and seller, alternatively
(3)
Signed by an agent of each of the parties whom they have authorised
in writing.
[21]
Where one of the parties to a deed of alienation is a trust, the
signing of the agreement should be by all the trustees of
the trust
(as in accordance with the letters of authority at the time of the
conclusion of the agreement), unless the trust instrument
provides
otherwise. This principle is said to be consequent from the nature of
the trustees7 joint ownership of the trust property
and since
co-owners have to act jointly, trustees also act jointly for the
trust to be bound by their acts. See Land and Agricultural
Bank of
South Africa v Parker and Others 2004 SA (SCA) 77 at 85C, Nugent J
also in Luppacchini No & Another v Minister of Safety
and
Security & Another
2010 (6) SA 457
clarifies the trust's capacity
to transact by stating that:
"by
the nature of the office of the trustee the control and
administration of the trust property vests in each trustee
individually.
It follows that where there is more than one trustee,
they must act jointly unless the trust instrument provides otherwise.
And
because they have individual interests all must necessarily join
in litigation concerning the affairs of the trust (though it seems
that one trustee might authorise another to sue in his or her own
name)."
[22]
The interest of the trustees in the trust property is even-handed as
ownership vests in them equally. Therefore each of the
trustees (as
authorised by the letters of authority issued by the master) has a
legal right to sign the agreement but such right
can only be
exercised jointly with the other trustees for it to have any legal
effect unless a trustee is the lone holder of letters
of authority in
terms of that particular trust (if it ever happens).
[23]
In terms of the law of agency, a trustee can give authority to a co-
trustee to act on his or her behalf as per Luppacchini
statement that
'though it seems one trustee might authorise another to sue in his or
her own name'. In the alienation of immovable
property, the Act
requires the authority to a trustee to act as an agent of a
co-trustee/s to be in writing and by each individual
trustee, for a
valid deed to be concluded with a trust as one of the parties. As it
has been already indicated above, due to its
inherent make up, a
trust lacks a legal persona and acts through its trustees jointly.
[24]
The authority can also be in a form of a resolution signed by all the
trustees. Oral authority would be tantamount to no authority
at all,
see Thorpe v Trittenwein & Another
2007 (2) SA 172
(SCA) at 178G,
and the written authority should have existed at the time when the
agreement was signed, as subsequent satisfaction
of authority in
writing would be of no force or effect in that it would not rectify
an agreement that was void ob initio for lack
of authority. The
situation is determined by the status quo at the time of signing of
the agreement. Ratification ipso facto as
in the instance of a
company, is not possible. See Thorpe at 176D.
[25]
In the instance that the trust deed stipulates the conditions under
which the trustees are to transact and/or administer and
control the
trust property, the validity of their conduct and authority would be
determined in terms of the provisions of the trust
deed. If it sets
out that authority be granted by resolution of a certain number of
trustees at a given time, unless such a resolution
is signed by the
number of trustees mentioned, (signing of which cannot be delegated)
it would be of no force or effect. See Land
and Agricultural Bank of
South Africa v Parker & Others
2005 (2) SA 77
SCA at 84B.
[26]
Applicant's Counsel, Mr van der Berg, indicated that his main
argument is premised on the fact that the sale agreement signed
by
the First Applicant and 1st Respondent did not comply with the
provisions of Section 2 (1) of the Act as in the matter of Thorpe,
precisely the requirement that the agreement to alienate land be
signed by the parties or their agents with written authority.
Accordingly he submitted that in a sense it will not be necessary
then to continue with the other issues raised by the 1st Respondent
as the agreement is void ab initio for the want of such compliance.
As indicated the 1st Respondent raised a number of defences
and some
of them will not carry any weight if the agreement is found to be of
no force or effect.
[27]
Mr van der Berg argued that in the same way as in Thorpe, First
Applicant did not have authority in writing from the other
three
trustees at the time of signing the sale agreement and therefore his
action could not bind the trust. Mr Sieberhagen, 1st
Respondent's
Counsel's counter argument on this point was that First Applicant did
not need any authority from the other trustees,
he was acting in
terms of the letter of authority granted to him by the Master as
trustee not as an agent of his co-trustees, which
argument is way off
the mark and illustrate Counsel's failure to appreciate the
fundamental dimensions of the operation of a trust
as well as its
purpose. It ignores the vital principle of trust law pronounced in,
inter alia, the case of Landbou and in Luppacchini
where it was
confirmed that the trust property vests in all the trustees equally
who then therefore all need to act jointly as
far as such trust
property is concerned unless the other trustees have in writing
delegated their authority to the signatory trustee.
Applicant's
Counsel correctly referred here to Scott J statement in Thorpe that:
"Whether
one regards Thorpe as having acted as a functionary of the trust and
in that sense a principal, or as both a principal
(as co-trustee) and
agent of the other co-trustees, the resuit in my view must be the
same. Given the object of the section, it
must be construed, I think,
as being applicable on either basis. In other words, the reference in
the section to 'agents' must
be understood as including a trustee who
may in a sense be said to sign as a principal (ie as trust), but
whose power to bind the
trust is nonetheless dependent upon the
authority of the co-trustees."
[28]1st
Respondent's Counsel's argument seems not to be able to discern the
distinction between being appointed to the office of
trust as trustee
(by being issued with letters of authority by the master) and the
method of control and administration of the
assets of the trust that
is determined by the trust deed alternatively by the law that is
authoritarian and to be undertaken by
all the trustees in office
together on whom the ownership of the assets vests. The letters of
authority from the master bear the
names of 4 trustees and cannot be
used, as alleged by Respondent, as proof for a trustee to can act
alone and bind the trust minus
a written resolution.
[29]
Applicant's Counsel also went further and pointed out during the
presentation of his submission that in terms of the trust's
deed:
[29.1]
there should at all times be a minimum of two trustees in office, par
4.2.
[29.2]
the required quorum for any meeting of the trustees shall be the
majority of the number of trustees in office, par 18.8.
[29.3]
a resolution that has been reduced to writing signed by all the
trustees will have the same authority as a resolution taken
in a
properly constituted meeting, par 18.5.
[29.4]
the trustees can authorise one or two of their co trustees to sign on
behalf of the other trustees any documentation necessary
for the
administration or control of the trust or conclude any contract in
respect of the trust property, and any resolution certified
as a true
extract from the minutes of the original resolution of the trustees
will at all times have the effect of a resolution
signed by all the
trustees, par 18.8.
In
essence he regarded the provisions to prescribe that the necessary
actions and authority of the trustees was to be conducted
by way of a
joint resolution. I agree with Counsel. In contradiction with the
provisions of the trust there was no resolution in
writing adopted by
the trust authorising the First Applicant to conclude the sale
agreement nor was there a signed authorisation
by the non-signatory
trustees to the signatory trustee to sign the agreement on their
behalf.
[30]
So, it was incomprehensible when Respondent's Counsel's persisted
with his argument even though the trust deed does not have
provisions
that sanction the acts of a lone trustee to bind and represent the
trust. Actually the deed of trust required a minimum
number of 2
trustees to be in office which requirement on its own is a capacity
defining condition that lays down a prerequisite
of a number of
trustees capacitated to act for the trust for the estate to be bound.
See Nieuwoudt and Another NNO v Vrystaot Mielies
(Edms) BPK
2004 (3)
SA 486
SCA and Pullicchin. Respondent's Counsel, astoundingly was not
troubled by his tine of reasoning but continued to misquote the
following passage in Thorpe on para 9, by not reading the part that I
have underlined that is very important to the debate referenced:-
"The
assets and liabilities constituting the trust vest in the trustees
and it is they who administer them. They are therefore
not the agents
of the trust, nor for that matter of the beneficiaries {Hoosen and
Others NNO v Deedat and Others
1999 (4) SA 425
(SCA) ([1999]
4 All SA
139)
at para [21]). It is moreover trite that unless the trust deed
provides otherwise, trustees must act jointly."
I
therefore find no basis for First Respondent's contention that First
Applicant could and was acting as the Principal, when the
trust deed
does not provide that a trustee acting alone could bind the trust.
[31]
In that instance the sale agreement that First Applicant concluded
with the 1st Respondent was void ab initio for failure to
comply with
Section 2 (1) of the Act in that it was not signed by the purchaser
(that is the trust, acting through its trustees
jointly or by
resolution) or by an agent with their written authority. So the
agreement never came into existence and therefore
there cannot be
repudiation or cancellation of a non-existent agreement as illegal
contracts cannot be enforced. 'It is a fundamental
principle of law
that a thing done contrary to the law is void and of no effect/ Per
Innes CJ in Schierhout v Minister of Justice
1926 AD 99
at 109/ 1st
Respondent's counterclaim should accordingly fail.
[32]
Mr Sieberhagen then argued for the matter to be referred to oral
evidence on the basis that there is a dispute on whether First
Applicant was indeed not authorised to sign the agreement due to the
fact that he has appended his signature on the document as
a duly
authorised representative of the trust. He argued that it would
therefore be important to be able to make out from the evidence
of
the other trustees if he was authorised as this fact is not denied in
the affidavit. Oral admission by the other trustees that
the First
Applicant had authority will not assist the First Respondent in
trying to enforce the agreement as it is indicated that
in terms of
the Act there should be a written authority which in terms of the
trust deed can be a signed resolution or by each
of the trustees as
already pointed out in the early part of this judgment. See also
Thorpe. The key question is not whether First
Applicant had authority
or not a fact that is not denied by the Applicants, but if such
authority was in writing, in compliance
with the provisions of the
Act. There is no dispute with respect to the iatter question. First
Respondent has failed to prove that
such written authority in fact
existed and misconstrued the written authority as prescribed by the
Act to be that of the letters
of executorship therefore referral to
oral evidence would not assist it. There is no fact that substantiate
that allegation that
is sustainable thus no genuine dispute of fact
exists. In Plascon-Evans Paints Ltd v van Riebeeck Paints (Pty) Ltd
1984 (3) S/A
623 (A) 634-635, uncreditworthy denials or allegations
that would not impede the grant of relief that the Court is justified
in
rejecting them merely on the papers were extended to include those
that are so far-fetched or clearly untenable.
[33]
Mr Sieberhagen's further argument was that if the agreement is found
to be invalid, the pari delictum rule should apply because
First
Applicant acted with the full knowledge of the other Applicants who
actually tried to comply with the provisions of the agreement,
accordingly showing their consent to the agreement. The claimed rule
prescribes that a party should not obtain satisfaction from
a court
of law with where his own conduct is wrongful, wherefore Applicant
should be denied the relief sought. In the matter of
Hitter Adolf
Kloukow v Michael Boyton Sullivan, (410/2004)
[2005] ZASCA 99
(29
September 2005) the Supreme Court of Appeal found that once the
Applicant has alleged that Respondent was in possession of
the
property sold and the money paid, the Respondent then carries the
burden to show that even though he keeps both he had not
been
unjustly enriched. It is also important to note that our courts have
the power or a discretion to relax the rule in the interests
of
equity as it has been recognised that the rule sometimes result in
inequitable outcomes. First Respondent has not put forward
facts that
prove that by keeping both the property and the money it would not be
enriched and therefore cannot find any solace
from the rule. 1st
Respondent as pointed out by Mr Vorster, the other Counsel for
Applicants, never relinquished possession and
the occupation of the
property and was as a result not hindered or prevented from complying
with the contracts that it alleges
were in place at the time. It
remained in control of the property and could have used it as it
deems fit. He therefore did not
show any reason that entitles him to
keep the deposit as well.
[34]
In terms of Section 28 (1) (b) the alienator may in addition recover
from the alienee:
(i)
A reasonable compensation for the occupation, use or enjoyment the
alienee may have had of the land;
(ii)
Compensation for any damage caused intentionally or negligently to
the land by the alienee or any person for the actions of
whom the
alienee may be liable.
[35]
None of the above featured in this transaction and therefore there is
no justification for the 1st and 2nd Respondent to refuse
to pay back
the full amount of the deposit together with interest that has
accrued to Applicant's deposit.
[36]
It is 1st Respondent's contention that in the instance of the court
finding that First Applicant action could not bind the
trust, he
should be held liable in his personal capacity to pay the R2
000,000.00 plus mora interest for having falsely represented
as
reflected in the sale agreement under his signature that he is duly
authorised whilst he was not. Having recognised at the end
of his
argument that First Applicant was before court in his representative
capacity as trustee and not in his personal capacity
and that this
claim can therefore not be sustained without impleading him in his
personal capacity as a party, Mr Siebengahn then
and there as his
final submission applied for the joinder of the First Applicant in
his personal capacity in the matter.
[37]
As already mentioned, at the time of the joinder Application, Mr
Siebengahn had dealt with all the issues in this matter including
the
claim against First Applicant in his personal capacity that is based
on allegations of misrepresentation but for the joinder.
First
Applicant, in his personal capacity is not a party to this matter and
was legally not before court, he is together with his
co Applicants
before court as representatives of the trust, which then posed a
problem for the 1st Respondent. Counsel in attendance
for the
Applicants was representing them in their representative capacity as
trustees and not in their personal capacities and
therefore could not
and was not expected to deal with the Application for joinder of the
Applicant in his personal capacity raised
from the bar. Counsel was
not authorised or instructed to act for First Applicant in his
individual capacity. It was therefore
inappropriate for 1st
Respondent to bring the Application without following the right
process or procedure of Notice and service
upon First Applicant in
his personal capacity in order to afford First Applicant an
opportunity to respond to the Application and
seek representation if
he so wishes. There was no excuse for 1st Respondent to resort to
such last minute manoeuvres as it has
been aware of its claim against
the First Applicant in his personal capacity since 14 November 2012
when it delivered its Answering
Affidavit that constituted such a
claim. There was ample time for 1st Respondent to serve the
appropriate notice as directed by
s 6 (7) and s 6 (11) of the Supreme
Court Act and Rule 10 (3) of the Uniform Rules of the High Court.
Therefore the Application
launched from the bar, without proper
notice or process followed cannot be considered by the court.
[38]
1st Respondent has in any case deferred to a later date the claim for
damages against the trust that he alleges to have suffered
as a
result of the purported
agreement.
The relief sought therein is tantamount to what 1st Respondent is
seeking against the First Applicant, so First Applicant
can be sued
in his personal capacity together with the trust in that subsequent
litigation. 1st Respondent is not barred from any
future institution
of proceedings against the First Applicant in his personal capacity,
in that instance his claim is not compromised
nor is it prejudiced by
a refusal by this court to consider the Application. 1st Respondent's
Counsel did not in any case indicate
if any prejudice will be
suffered if application for joinder is not considered nor did he
offer an explanation or circumstances
that would justify not
following the right procedure or apply for condonation for not
adhering to the rules of procedure as applicable.
[39]
I therefore cannot find any justification for allowing deviation from
the rules and the launching of the Application for joinder
from the
bar without the appropriate notice being served on the affected
party. The court will be perpetuating an injustice and
certainly not
acting in the interest of justice if the Application is considered.
[40]
The parties have submitted that I should also decide upon the issue
of costs that was incurred in the urgent application that
was
brought, according to Applicants prior to the 2nd Respondent
undertaking to keep the deposit in its trust Account until the
matter
is finally adjudicated upon by the court.
[41]
The Applicants brought the urgent Application under case: 56377/12,
seeking an interdict to prevent the 2nd Respondent from
paying it
over to 1st Respondent.
[42]
It is Applicant's contention that the costs of the Application was
incurred due to 2nd Respondent's refusal at the instance
of the 1st
Respondent, to pay back the deposit that it alleges was to be
forfeited as compensation for 1st Respondent's unproven
damages and
to furnish Applicants with an undertaking that they will not deal
with the money pending finalisation of matter that
Applicants
demanded on 20 September 2012, before launching the urgent
Application.
[43]
Instead of furnishing Applicants with an undertaking 1st Respondent's
erstwhile attorneys advised Applicant's attorneys on
21 September
2012 that if they are not in receipt of Applicant's Application
within 5 days, they will proceed to pay over the deposit
to the 1st
Respondent. As a result Applicant launched the urgent Application.
[44]
First Respondent then furnished the Applicant with the undertaking
with a condition that the urgent Application is withdrawn,
it was
therefore at the behest of 1st Respondent that the urgent Application
was launched and later withdrawn, consequently, it
must carry the
liability of the costs incurred thereby. Seeking legal proceedings to
be launched by the Applicant as a necessary
condition to the
undertaking led to a wasteful and expensive expenditure to be borne
by the Applicant.
[45]
Under the circumstances I hereby make the following order:-
[44.1]
1st Respondent's counterclaim is dismissed with costs;
[44.2]
1st Respondent's Application for joinder of First Applicant in his
personal capacity is struck off the roll.
[44.3]
the sale agreement purportedly concluded between the Trust and the
1st Respondent on 12 June 2012 is void ab initio;
[44.4]
the 2nd Respondent is ordered to pay to the Applicants the sum of R2
000,000.00 together with any and/or all interest that
may have
accrued upon the aforesaid amount since the deposit was paid to the 2
Respondent on behalf of the trust and/or investment
by the 2nd
Respondent of the aforesaid sum pursuant to the conclusion of the
void sale agreement between the Applicant and 1st
Respondent.
[44.5]
1st Respondent is ordered to pay the costs of the Application.
[44.6]
1st Respondent; is also to pay the costs of the urgent Application
served by the 1st to 4th Applicants under case number
56377/2012.
N
V KHUMALO
ACTING
JUDGE OF THE HIGH COURT
Counsel
for 1st Respondent: P Sieberhagen
Instructed
by: Klinkenberg Incorporated
Counsel
for Applicants: J P van der Berg & Vorster
Instructed
by: Natasha van Rooyen Attorneys