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[2013] ZAGPPHC 457
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Goolam v Pristina Investments CC and Others (63204/2013) [2013] ZAGPPHC 457; [2014] 2 All SA 312 (GNP); [2014] 2 All SA 312 (GNP) (11 November 2013)
REPUBLIC
OF SOUTH AFRICA
GAUTENG HIGH COURT
(PRETORIA DIVISION)
CASE NO: 63204/2013
DATE: 11 NOVEMBER 2013
In the matter between:
SHAHEEN GOOLAM
…………………………………………………..
Applicant
and
PRISTINA INVESTMENTS CC
…………………………………..
1
st
Respondent
CHARL ARRANGIES
……………………………………………..
2
nd
Respondent
DAWOOD YUSUF SEEDAT
………………………………………
3
rd
Respondent
T
HE
REGISTRAR OF DEEDS, PRETORIA
……………………
4
th
Respondent
RIDWAN GHOOD
…………………………………………………
5
th
Respondent
CORAL L
AGOON
INVESTMENTS 225 (PTY) LTD
……………..
6
th
Respondent
JUDGMENT
MNGQIBISA-THUSI J:
[1]
The
applicant is seeking relief in two parts:
PART A
1.1
pending
finalisation of Part B, an urgent interim interdict preventing the
first respondent from effecting the transfer or alienation
of the
following properties:
1.1.1
Portion
5 of Erf 654, situated in the Township of Duncanville, Registration
Division I.Q., held by Deed of Transfer T102490/2003;
1.1.2
Portion
6 of Erf 654, situated in the Township of Duncanville, Registration
Division I.Q., held by Deed of Transfer T165040/2006
(“the
properties”).
PART B
1.2
an
order setting aside the certified copies of title deeds of the
properties, issued by the fourth respondent to the first respondent.
[2]
With
regard to Part A, no relief is sought against the second, third,
fifth and sixth respondents and no cost order against the
fourth
respondent unless it opposes this part of the application.
[3]
The
third respondent’s estate has been sequestrated and the
insolvent estate’s trustee has indicated that he is not
opposing Part A of the application but will be opposing Part B if the
interim interdict is granted.
[4]
The properties are
currently registered in the name of the first respondent.
[5]
In
an application for an interim interdict, in order to succeed the
applicant has to show that:
5.1
it
has a
prima facie
right, though
open to some doubt;
5.2
it
has a well-grounded apprehension of irreparable harm if the order is
not granted;
5.3
that the balance of
convenience favour the granting of the order; and
5.4
that the applicant has no
other satisfactory remedy.
[6]
As
appears from the founding affidavit, on 30 May 2012 the applicant
concluded a loan agreement with the third respondent in the
amount of
R5 000 000.00 repayable by 25 June 2012. As security for the loan the
third respondent gave the applicant’s attorney,
Monte Phillipus
Coetzer (“Coetzer”), title deeds of the following
properties for safekeeping until the loan is fully
paid:
6.1
the
properties mentioned in sub-paragraphs 1.1.1 and 1.1.2 above; and
6.2
Erf
642, situated in the Township of Duncanville, Registration Division
I.Q., held by Deed of Transfer T100214/2004,
subject to the attorney giving the
title deeds to the fifth respondent once the loan is fully repaid.
[7]
At
the time the loan agreement was concluded and the title deeds were
given to Coetzer, a certain Aziz Patel (Patel), was the sole
member
of the first respondent, and appears to have given the third
respondent the title deeds to
use as security for the loan.
Patel has filed an affidavit confirming that he has given the title
deeds to the third respondent
to use ‘as he deems fit’.
[8]
On
10 September 2012 Patel sold his 100% member’s interest in the
first respondent to the third respondent. On the same day
the third
respondent sold his member’s interest in the first respondent
to Hassim Tayob (“Tayob”) who is currently
the sole
member of the first respondent.
[9]
On
26 October 2012 Tayob, on behalf of the first respondent, applied for
certified copies of the title deeds of the properties from
the
Registrar Deeds (fourth respondent) after submitting an affidavit in
which he claimed that the title deeds to the properties
were lost.
The certified title deeds were issued on 9 November 2012. Subsequent
thereto a bond was registered over the properties
in favour of Coral
Lagoon Investments 255 (Pty) Ltd (“Coral Lagoon Investments
255”) after Tayob sold the first respondent
on 12 September
2013 to the second respondent.
[10]
It
was submitted on behalf of the applicant that Tayob was aware at the
time he applied for the certified copies of the title deeds
that the
applicant’s attorney was in possession of the original title
deeds.
[11]
In
its answering affidavit first respondent has raised as a preliminary
point the fact that the applicant has served its application
on the
sixth respondent, who should not have been cited, and not on Coral
Lagoon Investments 255 which has an interest in the matter
as
bondholder.
[12]
The
applicant’s attorney, Coetzer has filed an affidavit that after
discovering the mistake that the wrong entity has been
cited and
served, attempted to serve Coral Lagoon Investments 255 at its
registered address. However, it was discovered that no
such address
exists.
[13]
As
it has become apparent that Coral Lagoon Investments 255 holds a bond
over the properties, it does have a direct and substantial
interest
in the application and should have been joined. Without being given
notice of this application, Coral Lagoon Investments
255 cannot be
bound by an order of this court. However, I am satisfied by the steps
taken by the applicant after it discovered
that it had not cited the
correct bondholder in order to effect service. As the listed
registered address of Coral Lagoon Investments
255 has been found to
be non-existing nothing more could be expected from the applicant in
relation to service. However, as suggested
by counsel for the
applicant, should I grant the relief sought, a rule nisi will be
granted so as to give Coral Lagoon Investments
255 an opportunity to
react to the application.
[14]
The
first respondent has raised a number of grounds for the refusal of
the application. The main ground raised is that the loan
agreement
between the applicant and the third respondent is in invalid in that
the applicant is a credit provider and should have
been registered as
such in terms of the National Credit Act 34 of 2005 (“the
Act”). The first respondent relies on
section 40(4) read with
section 89(5) of the Act which renders any agreement by a credit
provider who was required to be registered
as a credit provider in
terms of section 8 of the Act, void for lack of registration. This
would automatically render any security
given also void. It is the
first respondent’s contention that since the amount of the loan
the applicant gave to the third
respondent was above the threshold
set, the applicant was obliged to register as a credit provider.
[15]
On
behalf of the applicant it was submitted that he was not aware that
in giving the loan to the third respondent, he ought to have
registered as a credit provider in terms of the Act. The applicant
further submitted that he was prepared to forego the interest
charged
on the loan. This could amount to the loan agreement qualifying as an
incidental agreement, and as a credit provider, would
not be obliged
to register. Furthermore, the applicant contends that he still has an
enrichment claim, even if the agreement is
declared to be void and
would therefore suffer irreparable harm if the interim order was not
granted.
[16]
I
am of the view that the enrichment claim which the applicant might
have, amounts to a prima facie right which qualifies for protection
in the event that when Part B of this application is considered, it
is found that the applicant should have registered as a credit
provider.
[17]
It
was further submitted that the agreement between the applicant and
the third respondent was invalid in that the third respondent
indicated to Tayob that he signed the agreement under duress. In this
regard reliance is placed, not upon a confirmatory affidavit
by the
third respondent but on a written statement he made. Not much
reliance can be placed on the statement which was not made
under oath
and amounts to hearsay evidence.
[18]
It
was argued on behalf of the first respondent that the first
respondent would suffer irreparable harm if, as a result of the
interim interdict being granted, the second respondent as purchaser
of the properties decided to cancel the sale agreement. Further
it
was submitted that should the order be granted, the applicant should
be directed to pay into the first respondent’s attorney’s
trust account an amount of R650 000.00 plus value added tax, being
the amount the first respondent would be liable to pay in the
event
that the sale agreement is cancelled. Furthermore, that an order be
made that the applicant should provide an indemnity in
favour of the
first respondent for any damages it may sustain should he not be
ultimately successful.
[19]
Furthermore,
the first respondent argued that the applicant has not complied with
the practice manual as it relates to urgent matters
in that he had
not provided the respondents sufficient time to file their answering
affidavits. It is the first respondent’s
contention that it
only got knowledge of the application on 8 October 2013, giving it
insufficient time to consult its legal representatives
and preparing
an answering affidavit for the hearing on 15 October 2013. Nothing
turns on this point raised by the first respondent,
as appears from
the return of service, the application was served at its registered
address on 04 October 2013.
[20]
I
am of the view that the applicant has shown that he has a prima facie
right, though open to some doubt as he holds the title deeds
as
security for the repayment of the loan. Further that the balance of
convenience favours the granting of the interim interdict
as the
applicant would suffer irreparable harm if the fourth respondent was
not ordered to suspend the transfer of the properties
to the second
respondent pending the finalisation of Part B of the application.
[21]
I
am therefore satisfied that the applicant has shown sufficient cause
for an interim interdict to be granted. Any prejudice which
the first
respondent may suffer can be accommodated by an order that the
applicant provide an indemnity to the first respondent
for any
damages the first respondent may suffer.
[22]
The
parties have not reached agreement as to the amount the applicant
should give as security. The applicant has offered to deposit
an
amount of R741 000 into the trust account of his attorney pending the
finalisation of Part B of the application. Further, the
applicant has
undertaken not to withdraw the said amount from his attorney’s
trust account until Part B is finalised. While
accepting the
undertaking made by the applicant, it is the respondent’s view
that the amount tendered is equivalent to the
agent’s
commission and does not address the potential damages the respondent
may suffer with regard to the properties pending
the finalisation of
Part B. It is the respondent’s contention that over and above
the amount tendered by the applicant, the
applicant should also
deposit an amount of R4 250 000 as indemnity should the potential
damage result.
[23]
Accordingly the following
order is made:
20.1
An
interim interdict is granted directing the fourth respondent not to
effect the transfer or alienation of the following properties:
20.1.1
Portion
5 of Erf 654, situated in the Township of Duncanville, Registration
Division I.Q., held by Deed of Transfer T102490/2003;
20.1.2
Portion
6 of Erf 654, situated in the Township of Duncanville, Registration
Division I.Q., held by Deed of Transfer T165040/2006,
pending the
finalisation of Part B of this application.
20.2
The
applicant is ordered to publish this order in one edition of two
newspapers circulating within the Gauteng Province.
20.3
Coral
Lagoon Investments 255 (Pty) Ltd is called upon to, within 30 days of
the publication of this order, show cause why the order
in paragraph
1 should not be made against it.
20.4
The
applicant is directed to deposit the amount of R741 000.00 plus VAT
into its attorney’s account within fourteen (14) days
of this
order, which amount should not be withdrawn pending the determination
of Part B of the application;
20.5
The
applicant is further ordered to provide the first respondent with
security to the amount of R4 250 000.00 within fourteen (14)
days of
this order pending the determination of Part B of the application.
20.6
Costs
are reserved.
NP
MNGQIBISA-THUSI
Judge
of the Gauteng High Court