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[2013] ZAGPPHC 206
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Nedbank Ltd v Venter NO and Others (15370/2012) [2013] ZAGPPHC 206 (26 June 2013)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
CASE
NO: 15370/2012
DATE:26/06/2013
In
the matter between:
NEDBANK
LIMITED APPLICANT
and
ETTIENE
MAURITZ VENTER N.O. 1st RESPONDENT
ENVER
MOHAMED IVIOTALA N.O. 2nd RESPONDENT
TSEKE
JOHANNES MPHAHLELE N.O. 3rd RESPONDENT
THE
REGISTRAR OF DEEDS 4
th
RESPONDENT
TARRYN
DE JONGH 5th RESPONDENT
HENRY
ALEXANDER THOMSON MYERS 6
th
RESPONDENT
THE
TRUSTEES FROM TIME TO TIME OF
PROPERTY
ONE TRUST 7
th
RESPONDENT
JUDGMENT
A.A. LOUW J
Introduction
[1]
The applicant, Nedbank Limited, seeks the cancellation of two
mortgage bonds which were apparently fraudulently registered against
the respective title deeds.
[2]
The first and second respondents are sued nomine officio as joint
provisional liquidators of Altivex 208 (Pty) Ltd which company
owns
the one property.
[3]
The third respondent is sued in a similar capacity as the provisional
liquidator of Four Arrows Investments 257 (Pty) Ltd which
company
owns the other property.
[4]
The fourth respondent is the registrar of deeds, the fifth, ms de
Jongh was the conveyancer who saw to the registration of these
properties and the registration of the bonds.
[5]
The application is opposed only by the sixth and seventh respondents.
The deponents to these affidavits appear to be a husband
and former
wife and the contents of the two opposing affidavits are similar in
most relevant respects.
Common cause facts
[6]
a. The sixth respondent sold his immovable property to Four
Arrows
Investments 257 (Pty) Ltd;
b.
The seventh respondent’s trustee who was previously married to
the sixth respondents sold the trust’s immovable property
to
Altivex 208 (Pty) Ltd. Copies of the sale agreements
appear
as annexures “ZB4” and “ZB9”, the terms of
which are not disputed;
c.
Nedbank (i.e. the applicant) financed the acquisition of the property
by Four Arrows Investment 257 (Pty) Ltd;
d.
The acquisition by Altivex 208 (Pty) Ltd was initially financed by
Absa Bank but the applicant took over the bond loan during
May 2007;
e.
The sixth respondent acted as the agent in the sale of the properties
and received substantial commissions;
f.
Usufructs were registered against the title deeds of the properties
owned by the mentioned companies in favour of the sixth respondent
and the trust controlled by the sixth
respondent’s
former spouse. In both instances ms Tarryn de Jongh acted as the
conveyancing attorney. As the transferee companies
did not pay they
were both placed in voluntary liquidation by the sixth respondent.
Could the Usufructs be registered?
[7]
Although the sixth and seventh respondents claim in their answer as
follows in par 12.2:
“
/
reiterate that paragraphs 3 and 4 of the agreement of purchase and
sale, annexure “ZB9”, provides for the registration
of a
usufruct in my favour for a period of 20 years against the property.
”
One
look at the clauses referred to show that they exist of three lines
of calculations which to the ordinary reader thereof will
mean
nothing. The word “usufruct” or the alleged period of
such a usufruct is not even mentioned.
Conclusion on existence of usufruct.
[8]
The answer is quite clear that no such usufructs ever came into
existence.
I
need only in passing referred to the
Alienation of Land Act, 65 of
1981
, which states that all essential terms of a sale must be clearly
stipulated in the signed contract and furthermore
section 65(3)
of
the
Deeds Registries Act 1937
as follows:
If
the land to be encumbered by a personal servitude is mortgaged or
subject to any other real right with which the said personal
servitude may conflict, the bond or other registered deed by which
such right is held shall be provided to the registrar together
with a
consent in writing of the legal holder of such bond or other right to
the registration of the said personal setvitude and,
in the case of a
bond, free from the bond.”
[9]
Before I proceed to give the order, it is my unfortunate duty to
report the conduct of ms Tarryn de Jongh to the Law Society
of the
Northern Provinces. Enough background detail has been set out above
but it is prudent to add references to a few further
paragraphs:
-
............ “5.5. Unbeknown to the Applicant, the sixth
respondent...
acting
as the seller of the immovable property, requested the attorneys
tasked with the registration of the bond, De Jongh &
Pienaar
attorneys, to simultaneous with the bond registration also register a
usufruct in favour of the sixth respondent over the
property. This
request was made to fifth respondent, ms Tarryn de Jongh. ”
To
this allegation mr. Myers answers as follows on p 101:
15
Ad
paragrapgh 5.5:
15.1
I admit that the transferring attorney was instructed to give effect
to the usufruct which was properly agreed by the parties
and
described in the agreement to [sic] purchase and sale
[10]
“ZB15’: to the papers is an affidavit by Marlon Stuart
practising as a director and attorney of the firm Stuart
Van Der
Merwe Inc in Arcadia Pretoria. I quote the following subparagraphs
from his affidavit:
“
1.4.
I confirm that I am the only director of Stuart Van der Merwe Inc.
Attorneys and that Me. de Jongh (fifth respondent) was previously
employed by me. I also confirm that me [sic] firm is the custodians
of the files of the eartwhile firm De Jongh & Pienaar Attorneys.
The partners of this firm were struck from the roll of practising
attorneys as such, and in agreement with the Law Society of the
Northern Provinces, I am the custodian of all the old files of this
firm.
1.5
The files related to the registration of the bonds and usufructs
referred to in the Founding Affidavit are amongst the files
over
which I have control, I perused the files and supplied the Applicant
with all the information it needed to compile its application.
I also
discussed the matter with Me. Tarryn de Jongh (the fifth Respondent)
the attorney involved with this transaction. She confirmed
that she
received and instructions from the sixth and seventh Respondents to
register a usufruct over the property and that se
did so without
further enquiries. ”
[11]
This judgment will be referred to the Law Society of the Northern
Provinces and the Director of Public Prosecutions for urgent
investigation into the fitness of the attorney to remain on the roll
of practitioners and as far as the DPP is concerned fraud.
Conclusion
[12]
There was an application for condonation for the late filling of
answering papers which was not seriously contested. The sixth
and
seventh respondents however will have to pay ail the costs relating
thereto.
Order
1.
That the fourth respondent is authorised to cancel with immediate
effect the usufructs registered against the title deed / bond
documents of the following immovable properties:
1.1
Erf 51, Montana Park, Registration Division JR (T35770/2007)
1.2
Erf 28, Wonderboom, Registration Division JR (T95697/2006)
2.
That the first, second, third, fifth and sixth respondents be ordered
to pay the cost of this application jointly and severally.
3.
The sixth and seventh respondents are ordered to pay the costs
relating to their application for condonation for the late filing
of
their opposing affidavits.
AA
LOUW
JUDGE
6f THE HIGH COURT