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2012
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[2012] ZAGPPHC 46
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Joubert and Another v Smith NO and Others (46085/11) [2012] ZAGPPHC 46 (24 February 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 46085/11
DATE:
24 February 2012
MARK
SCALE
JOUBERT
.............................................................................
FIRST
APPLICANT
JEAN
MARTHA
JOUBERT
......................................................................
SECOND
APPLICANT
V
ADRIAAN
LOUW SMITH
N.O
.................................................................
FIRST
RESPONDENT
THE
MASTER OF THE HIGH
COURT
...............................................
SECOND
RESPONDENT
MARIA
MAGDALENA
JOUBERT
............................................................
THIRD
RESPONDENT
THE
REGISTRAR OF
DEEDS
............................................................
FOURTH
RESPONDENT
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
........................
FIFTH
RESPONDENT
JUDGMENT
MABUSE
J:
1.
The applicants, Mr. Mark Scale Joubert, the first applicant and Mrs.
Jean Martha Joubert, the second applicant, seek a number
of orders.
Firstly, they seek an order in terms of which an agreement of sale of
a property known as Erf. No. no, Erasmusrand,
Registration Division
JR, the Province of Gauteng, measuring 1983 m: ("the property")
is set aside; secondly, that the
first and final liquidation and
distribution account of estate late Grant William Joubert 1938/2011,
alternatively, such other
liquidation and distribution account iri
the said estate as may have been filed with the second respondent, be
set aside; thirdly,
that the transfer of the said property from the
Estate of the late Grant William Joubert ("Grant") to the
third respondent
be set aside and that the said property be
reinstated from the third respondent to the Estate of the late Grant
William Joubert
at the third respondent's costs; fourthly, that the
transfer of the property from the second applicant to the late Grant
William
Joubert be set aside and that the said property be
retransferred from the estate of the late Grant William Joubert to
the second
applicant at the costs of the said estate against the
restitution of such moneys as may be due to the estate of the said
Grant
William Joubert in respect of the purchase price; and fifthly,
that Grant William Joubert's estate and the third respondent be
ordered to pay the costs of this application jointly and severally on
a scale between attorney and client.
THE
PARTIES
2.
The first applicant is an adult businessman who lives at 35 Upper
Kildare Crescent, Fishhoek in Capetown. He applies in this
matter as
an interested party in so far as he was an heir in his late father's
estate. The second applicant is a widow who stays
on the property in
question. She is the widow of one William Rous Joubert ("Rous")
who died on 4 July 2002 and the mother
of the first applicant and the
deceased Grant William Joubert ("Grant"). Grant passed away
on 6 January 2011. By Letters
of Executorhip issued by the Master of
the High Court ("the second respondent") in Pretoria on 8
February 2011 under
number 1938/2011, the first respondent, a major
male employed by Stabilitas Board of Executors (Pty) Ltd, of Third
Floor Stabilitas
Chambers, 265 Kent Avenue, Fendale, Randburg, was
appointed as the executor of the estate of late Grant. He is cited in
this matter
in his capacity as the executor. The second respondent is
the Master of the High Court in Pretoria. The third respondent, Mrs.
Maria Magdalena Joubert ("Magdalena") is a major female who
lives at 302 Schoongezicht Street, Erasmusrand, Pretoria,
the other
name by which the property is known. She is the widow of Grant. The
property which constitutes the subject matter of
the sale agreement
which the applicants seek to have rescinded is registered in her
names. The applicants seek no relief against
her. The fourth
respondent, who is cited in his official capacity, is the Registrar
of Deeds who has been appointed as such in
terms of the provisions of
s. 2 of the Deed Registries Act No. 47 of 1937 of Merino Building,
corner Pretorius and Bosman Streets,
Pretoria. Again no relief is
sought against the fourth respondent. The fifth respondent is a
registered commercial bank in accordance
with the provisions of the
Banks Act No. 94 of 1990 and has its registered office at Standard
Bank Centre, 5 Simmonds Street, Johannesburg.
The reason for citing
the fifth respondent is that it has a vested interest in the property
having granted a mortgage bond over
the property under number
B15556/2004. No relief is sought against the fifth respondent.
THE
FACTS
.
3. During the year 1979, Rous, who at the time was married out of
community of property to the second applicant, purchased the
property. After his death in 2002, the second applicant inherited the
said property by virtue of the provisions of a joint will
made by her
and Rous on 26 June 1997. The salient details of the said will are
set out hereunder:
"3
We
bequeath the entire estate of the first dying of us to the survivor
of us...
4
Should
we die simultaneously or within 30 (thirty) days of each other or in
such circumstances in which the survivor is unable to
make a further
will, we direct that our entire separate estates are to be
consolidated and we bequeath the following assets in
our estates as
follows ...
4.2
We
further direct that the balance of our entire separate estates which
have been consolidated are bequeath in equal shares to our
two sons
the first applicant Scale Joubert, Identity number 610518 5794 082
and Grant William Joubert; Identity number 641202 5082
000. "
4-
The second applicant contends that by drawing their joint will in the
manner in which they did, she and Rous had wanted to make
sure that
the property would remain with both her sons jointly after their
passing away. Shortly before Rous died Grant constructed,
with the
full knowledge and consent of, and, agreement with Rous, a garden
flat on the property. This garden flat was constructed
on certain
conditions, inter alia, that Grant himself would construct the garden
flat on the property and she and Rous agreed;
that ownership of the
property on which the garden flat had been built would pass to the
surviving spouse of the two of them and
that in the event of the
survivor of them dying, ownership of the property would pass to the
joint ownership of the first applicant
and Grant, share-a-share
alike. In determining the value of each such shares, the first
applicant undertook to compensate Grant
in an amount equal to the
amount Grant spent in constructing the garden flat in addition to a
proportionate amount based on the
property valuations to adjust for
the increase or decrease in the pertaining value of the property.
5.
In order to fund the constructions of the garden flat, Rous
undertook, on Grant ceding his rights, title and interests in
sufficient
insurance policies in his favour, to register a further
mortgage bond in the sum of R200 000.00 over the property. She would
then
inherit the proceeds of the aforesaid ceded insurance policies
in the event of Rous dying.
6.
After Rous had passed away on 4 July 2002, the second respondent
inherited the property in accordance with clause 3 of their
joint
will. Following such inheritance, the property was registered in the
second respondent's names and deed of transfer T12175/2003
was
accordingly issued to her. During 2003 Grant approached her and
proposed that he should secure "an early inheritance"
and
in doing so he would buy the property from her. She agreed to Grant's
proposal on conditions firstly that Grant compensated
the first
applicant in the sum equal to one half of the value of the property
as at the time he purchased it and, secondly, that
Grant should
obtain the first applicant's approval to purchase the property from
her as the property would have constituted the
biggest asset in their
individual estates.
7.
She contends furthermore that she would never have sold the property
to Grant if the first applicant did not approve and, secondly,
if
Grant was not prepared to secure The first applicant's share in the
said property.
8.
During late 2003, she fell very ill. As a result of her illness, she
was admitted to No. 1 Military Hospital on a regular basis
as a
result of which she was unable to remember that she signed a deed of
sale, the power of attorney to pass transfer and some
supporting
documents. She was indeed concerned about the first applicant's
interests in the property to an extent that after the
sale of the
property she kept on asking Grant if the first applicant had approved
of it. Grant repeatedly reassured her that everything
was in order.
Up to the year 2010 the second applicant was under an impression that
Grant had obtained the first applicant's approval
before he could
purchase the property and furthermore that he had compensated him in
the amount equal to one half of the value
at the time of the
purchase.
9.The
third respondent, as indicated earlier, is now the registered owner
of the property by virtue of the will that Grant had drawn.
Her major
concern is that as a consequence of the deceptive actions of Grant,
the first applicant has been deprived of the bulk
of his inheritance
and that his inheritance has benefited Grant's estate.
10.
The first applicant's interests in the property was that he had been
told or given to understand by Rous and the second applicant
that his
inheritance would comprise of one-half share of the consolidated
estates of the survivor of his parents or that in the
event of the
parents dying at the same time one half share in the balance of such
consolidated estates of both parents.
11.
He confirmed that Grant did not obtain his approval when he purchased
the property and furthermore that even after he had purchased
it he
did not compensate him at all. Grant purchased the property from the
second applicant for R450 000,00 and later attempted
to sell it for
R2.2 million. He contends furthermore that Grant deprived him of his
inheritance from his parents.
12.
Gerrit Hendrik Nel could only say that he drew the joint will and
last testament after he received instructions from Rous. His
specific
instructions were to draw the will in the manner in which he did.
13-
The third respondent has expressed satisfaction in the expertise
exhibited by Nel in drawing the first and final liquidation
and
distribution account ("the account") in the estate of the
late Rous. Over and above her satisfaction, she has praised
Nel to
the skies for her expertise. She contends that at the time the said
account was drawn and a draft copy thereof was sent
to the second
respondent for her perusal by Nel under cover of a letter dated 7
February 2003, the second respondent had been a
house wife most of
her life.
14.
A copy of the said draft account showed quite clearly that there was
a substantial cash shortfall. Even the final account showed
a
shortfall of R298 828.99. This shortfall was supposed to be made good
by the second respondent paying an equal amount into the
estate in
order to prevent the estate assets, in particular the property, from
being sold in order to defray the estate liabilities.
Due to the fact
that there was a cash shortfall and that the second applicant was
impecunious, she was faced with two very difficult
situations to
resolve. Firstly, she had to pay the cash shortfall of R298 828.99
but had no financial resources whatsoever to do
so. She had to take
over the bond registered over the property. She could not do so
because she was unemployed and had no money
or source of income to
maintain the bond.
15.
It was Grant who came to her rescue by purchasing the property
following a valid memorandum of sale entered into on 8 October
2003.
Grant purchased the property from the second respondent for
R450,000.00. The property was then registered in his names. In
addition he took over the responsibility of paying the monthly
instalments in respect of the property.
16.
She disputed the applicant's contention that, after Grant had bought
the property, he was obliged to compensate the first applicant.
This
she did on the ground that Grant had paid the full purchase price to
the second applicant. According to her if the first applicant
was
satisfied that, under these circumstances he was entitled to be
compensated by Grant and that Grant did not oblige, he was
free to
sue for damages.
17.
When this matter came before court on Monday 6 February 2012, I
indicated to the parties at the outset that I was reluctant
to hear
the matter if there was no prayer in which the approval by the second
respondent of the first and final liquidation and
distribution
account in the estate of Grant was not set aside. The matter was
adjourned to a later date in order to enable the
applicants to effect
the necessary amendment of the notice of motion by the addition of a
prayer to that effect. The notice of
intention to amend the notice of
motion was served on the second respondent who then indicated that he
would not oppose the application
and furthermore that he would abide
the decision of the court.
18.
It would have been otiose to proceed hearing the matter when there
was no prayer in which, as I indicated earlier, the second
respondent's approval of the said account had been challenged. The
anchor of the prayers that the applicants sought was the said
account. The property in question had been registered in the names of
the third respondent in terms of a devolution set out in
the account
of Grant. The approval by the second respondent of a liquidation and
distribution account amounts to a decision which
occupies the same
level as an order of the High Court. Accordingly the matter could not
be heard while the decision of the second
respondent remained intact.
19.
The dispute between the parties is whether, in agreeing to sell the
property to Grant on 8 October 2003, the second applicant
was induced
by fraudulent misrepresentations made to her by the said Grant. It is
the applicant's case that the second applicant's
agreement to sell
the property to Grant was unduly and fraudulently influenced by
certain misrepresentations made by Grant. Those
misrepresentations
were firstly, that she had agreed to sell the property to Grant only
if Grant were, as he had undertaken, to
compensate the first
applicant in the amount equal to one half of the value of the
property as at the time he purchased it from
her and, secondly, only
if he had obtained the first applicant's approval to purchase the
property. It is common cause between
the parties that Grant did not
compensate the first applicant in any amount whatsoever and
furthermore that he purchased the property
from his mother without
having obtained his approval. It is also common cause that the
parties themselves had fixed the value of
the property at R450,
000.00. Accordingly, it is the applicant's case that Grant should
have paid the first applicant one half
of the said amount.
20.
It will be recalled that, according to the third respondent, Grant
had no obligation to pay the first applicant one half of
the value of
the R450,ooo.oo because the second applicant received all the money
and thereby the complete value of the property.
Grant could therefore
not pay one half of the said amount to the first applicant. It is
common cause that the estate of Rous had
estate liabilities amounting
to R293,032.76. In order to defray these liabilities the second
applicant would have had to pay an
equal amount into the estate or
sufficient assets of the estate would have had to be realised in
order to cover the cash shortfall.
The second applicant could not
afford to pay any amount into the estate as she did not have it. She
also did not have any source
of income. Seemingly as the surviving
spouse of someone who was in the navy she received some stipend which
was basically meant
to sustain her and not to pay Rous' estate debts.
21.
There is no evidence that the first applicant himself had any money
that he could contribute towards the estate liabilities.
In fact
nowhere in the evidence is there any mention that the first applicant
contributed towards the estate liabilities or volunteered
to do so.
The third respondent had testified that Rous' estate was insolvent.
This was denied by the first applicant who correctly
pointed out that
the said estate was not insolvent. He conceded however that it had a
cash shortfall of R R293,032.76 but added
that the said shortfall was
covered by the sale of Rous' shares. There is no evidence that the
proceeds of the sale of the shares
were sufficient to cover the cash
shortfall.
22.
There is also no evidence as to whether or not the value of the
shares was assessed and whether or not the amount that they
fetched
when they were sold was sufficient. In fact there is no evidence but
only a bare assertion by the first applicant that
the said shares
were sold. If indeed that was so this could have been reflected in a
supplementary account. There is therefore
no proof that any person
other than Grant contributed financially towards the liquidation of
the estate liabilities. I accept the
evidence of the third respondent
that in order to save the estate assets and to defray the estate
liabilities Grant bought the
property in 2003. It is the manner in
which the property was bought more than anything that constitutes the
battlefield of the
parties.
23.
Referring to the written agreement of sale, Mr Uys, counsel for the
third respondent, argued that the said property was not
sold subject
to any conditions or terms other than such conditions and terms as
were contained in the agreement itself. Relying
on the authority of
Johnston v Leil 1980(3) SA 978 (A) at 943 B, he argued that where
parties have decided to record their contract
in writing, their
decision will be respected and the resulting document or documents
will be accepted as the sole evidence of the
terms of the agreement.
24.
Clause 3.1 of the parties' written agreement of sale provided that
the second applicant sold the property to Grant on the terms
and
conditions which had been "fully set out" in the agreement.
The word "fully" suggested that the complete
conditions and
terms of the agreement had been fully set out in the written
agreement and that no terms or conditions which were
relevant to the
agreement had been left out. It provided as follows:
"The
Seller hereby sells to the Purchasers who hereby purchases the
Property on the terms and conditions as more fully set
out in this
Agreement"
Clause
2.4.4 of the agreement stated it unambiguously and convincingly that
the parties' written agreement contained all the terms
and conditions
in terms of which the second applicant sold the property to Grant.
The said clause 2.4.4 bad the following to state:
"...
this agreement set out the terms and condition in terms of which the
Seller sells the Property to the Purchaser."
25.
In terms of the provisions of clause 11.1.2 of the said agreement the
second applicant and Grant made it known to each other
at the
conclusion of the said agreement that neither of them was aware of
any facts or circumstances which would materially influence
the other
of them from entering into the agreement and which was not contained
in the said agreement. The two grounds on which
the applicants
challenge the validity of the agreement of sale in particular were
not part of the terms and conditions on which
the second applicant
and Grant were prepared to conclude their agreement. The duty rested
on each one of them to ensure that all
the terms and conditions on
which either of them intended to contract with the other of them were
contained in the said agreement.
The obvious purpose of this clause
was to ensure that the agreement expressed the full conditions and
terms upon which the parties
contracted with each other; that the
sanctity of the contract would not be challenged later by either of
the parties on the basis
that the agreement did not contain all the
terms and conditions and that neither of them should find it
necessary to resort to
extrinsic evidence in order to prove the terms
and conditions of the agreement.
26.
The terms or conditions on which the applicants rely to challenge the
validity of agreement are not contained in the parties'
written
agreement. The second applicant signed the agreement well knowing
that such terms or conditions had not been recorded in
the agreement.
In the absence of any special circumstances, which I must add, it was
the duty
of the second applicant to show to the court, a party
that signs the agreement, whether or not such a party knew the
contents of
such an agreement, is treated as having assented to it.
About such a party, Innes CJ had this to say in Burger v SCAR
1903 TS
571
at 578:
"it
is a sound principle of the law that a man, when he signs a contract
is taken to he bound by the ordinary meaning of the
words which
appear over his signature."
27.
The applicants' situation is exacerbated by the fact that the
parties' contract contained a non-variation provision in clause
11.2.
This clause stipulated that no alteration, cancellation, variation or
addition to the parties' agreement would be of force
and effect
unless such alteration or cancellation or variation or addition was
contained in a document signed by the parties. Finally
clause 11.3
contains an agreement between the parties that the document contained
the entire agreement between them and that neither
of them would be
bound by any unrecorded undertaking or representations or warrantees.
Mr Uys argued that any reference by the
applicants to the grounds on
which they challenged the validity of the agreement is an attempt to
employ extrinsic evidence in
order to prove the terms of the
agreement. He opined that such an attempt should not be allowed. On
this basis he urged this court
to dismiss the application.
28.
The second applicant contended that during 2003 she fell ill and was
resultantly regularly admitted to No. 1 Military Hospital.
During or
about that time she signed a deed of sale, a power of attorney to
pass transfer and other documentation necessary to
transfer ownership
of the property to Grant. It is common cause between the parties that
the second applicant signed the aforementioned
documents. It is not
the second applicant's case that she did not know that she was
signing the said documents because she was
admitted at the hospital.
On the principle set out in Burger v SCAR supra the second applicant
must therefore be regarded, for
all intents and purposes, as having
assented to what was contained in such documents. She is accordingly
bound by what she signed.
She contended furthermore that after Grant
had purchased the property from her and up to and including December
2010, she believed
that Grant had purchased the property or had
secured the first applicant's approval before he purchased the
property from her.
According to her testimony, the second defendant
only became aware when the first applicant instructed an attorney to
peruse the
relevant records at the offices of the fourth respondent
that Grant had purchased the property without paying the first
applicant.
It was only at this stage that the first applicant became
aware that Grant had purchased the property from the second
applicant.
29.
There is a dearth of essential details around the two grounds upon
which the applicants challenged the validity of the agreement.
In the
first place on 7 February 2003, the executor sent a copy of the
account in estate of the late Rous to the-second applicant
under
cover of a letter of the same date. In the said letter the executor
made it known to the second applicant that the original
account had
been forwarded to the office of the second respondent. At this stage
the second applicant was aware or should have
become aware about the
cash shortfall and that such a shortfall couid be reduced by the
realisation of the shares. Of utmost importance
is her attitude
towards the shortfall and what couid be done about it. One would have
expected that she would discuss the condition
of her late husband's
estate with her two sons and invite them to fashion out a solution.
There is no evidence that she did and
no explanation has been
proffered why she did not. The first applicant has not testified
about it either. There is also no indication
whatsoever that she took
steps to discuss the estate problems with the two sons, notably the
first applicant, to find a last resolution
to the issue of the
shortfall. In my view, the allegation that the second applicant only
became aware in December 2010 that Grant
had purchased the property
without having paid the first applicant and without having obtained
his approval coupled with her failure
to explain why she did not
discuss the problems pertaining to Rous's estate carries very little
weight.
30.
There is no evidence whatsoever as to when Grant was supposed to
compensate the first applicant and the manner in which such
compensation would have taken place. No evidence has been adduced as
to how the bond on the house would have been dealt with and
who would
have taken over payment of the instalments of the bond.
31.
With regard to the second ground, that Grant could only purchase the
property if he
obtained the first applicant's approval, again
there is a paucity of details in this regard. No
evidence has been
placed before the court, firstly, that Grant agreed to the condition
and
secondly no evidence as to when and how such approval by the
first applicants could be
obtained. In her affidavit the second
applicant stated that:
"I
do however recall being concerned about The first applicant's
interest and repeatedly asking Grant, before and after the
sale of
the immovable property, if he had in fact obtained the first
applicant's approval and reimbursed the first applicant In
answer to
the same Grant repeatedly reassured me that everything was fine and
taken care of. I naturally trusted my son and at
the time had no
reason not to believe wholeheartedly in what he said to me."
32.
What is certain about the second applicant's conduct is that firstly
she herself never took any steps to discuss the terms or
conditions
of the agreement with the first applicant. No explanation has been
given in the affidavit as to why the second applicant
never discussed
the agreement with the first applicant or enquire from the first
applicant himself whether he knew that Grant wanted
to purchase the
property and that he had agreed to Grant's offer on certain terms or
conditions. This flies across her declared
wishes that she was
interested in the first applicant getting what in her view was due to
him.
33.
Although Grant bought the property in 2003, it took her a little over
seven years to find out that Grant had not, according
to her own
version, paid the first applicant. The second applicant has furnished
no valid reason why she did not discover earlier
that the property
was registered in Grant's names without him having paid the first
applicant anything and without him having obtained
the first
applicant's approval. It was argued by Mr. Wesley that the second
applicant's version that she only became aware in 2010
that the
property had been registered in Grant's names without him fulfilling
the terms and conditions was not contradicted by
the third
respondent. That is not correct because the third applicant herself
testified that:
"i
do not recall the precise date but during 2006 at Pretoria in the
cottage in my presence Grant discussed the purchase price
of the
property with the first and second applicants."
Although
the third respondent has not furnished the full contents of the said
conversation her evidence ciearly contradicts the
second applicant's
version.
34.
The first applicant denied that at the meeting of November 2006 Grant
discussed the purchase price with him and the second applicant.
On
the contrary he contended that Grant had hinted on both of them
purchasing the property from their mother but he rejected such
a
proposal. It is, in my view, strange that Grant could make such a
proposition when he already had bought the property from the
second
applicant; after he had taken over the responsibility to maintain the
bond and the first applicant had contributed nothing
towards not only
the instalments of the bond but also the cash shortfall in their late
fathers' estate. It is clear from the first
applicant's evidence that
he and Grant never even discussed the bond instalments and the cash
shortfall.
35.
According to the third respondent the first applicant became upset
after Grant had made it clear that he would not pay him anything.
Even after they had discovered in 2010 that according to them Grant
had neither compensated the first applicant nor obtained his
approval, they did not, while they had the opportunity during Grant's
lifetime, take any steps to invalidate the agreement or to
claim
payment of the compensation. On her own version I am not satisfied
that Grant had made any misrepresentations.
36.
Even if this court were to accept that indeed there was a
misrepresentation made by Grant which induced the second applicant
to
conclude the agreement such a misrepresentation was, in my view, not
material and could therefore not justify the cancellation
of the
contract. Stratford AJA has this to say in Pathescope (Union) of
South Africa Limited v Mallinick
1927 AD 202
at 207:
"To
entitle her to succeed on the issue now being examined is it
necessary that the misrepresentation must be of a material
fact, that
is to say, that the misrepresentation must be of a nature as would be
likely - regarding the question from a commonsense
point of view -to
induce a person of intelligence and in the position of the plaintiff
to enter into the contract."
37.
That the alleged misrepresentation was not material can be inferred
from the following circumstances: the fact that, after she
and Grant
had agreed and Grant had, in her own words, undertaken to pay the
first applicant one half of the value of the property,
the second
applicant proceeded to accept without any reservations the entire
amount of R450 000.00 as the value of the property;
the fact that,
having accepted the said amount she did not insist on Grant paying a
further R275 000.00 to the first applicant;
the fact that she was
bent on safeguarding the first applicant's interests to a point
where, on her own version, she created what
in my view was a ius
quaesitum tertior or a contract for the benefit of a third party;
that she was only concerned with safeguarding
that the first
applicant received what rightfully was his share and, finally; the
fact that the first applicant now seems to be
desirous of getting
something out of the said contract which signifies his acceptance of
the contract.
38.
The third respondent raised an objection to the applicant's
application to include the following prayer in their notice of
motion:
"that
the first and final liquidation and distribution account of estate
late Grant William Joubert 1938/2001, alternatively,
such other
liquidation and distribution account in the said estate as may have
been filed with the second respondent be set aside."
The
basis of the objection was that after the second respondent had
approved the account in late Grant's estate, such an account
was duly
advertised as enjoined by the provisions of s- 35(5)(a) of tne
Administration of Estates Act 66 of 1965
and that no objection was
raised against it. Mr Uys argued that the applicants have not
supported the above prayer with any facts.
What is clear though from
the papers is that if the application to set aside the agreement of
sale succeeds, there will be no basis
for the second respondent's
approval of the said account.
39.
There is no doubt that the applicants did not object to Grant's
account. What is of
paramount importance though is that neither of
the two applicants has furnished reasons
why the second
respondent's approval of Grant's account should be set aside. In the
same
manner as an applicant must do in an application for
rescission of a default judgment, the
applicants must show good
cause why the decision of the second respondent in approving the
final account in the said estate must
be set aside. They have not
done so. In the same way as the applicant in an application for
rescission of default judgment, the
applicants in this matter must
also explain their failure to object to the account. This has not
been done either.
40.
According to Silber v Ozen Wholesalers (Pty) Ltd 1954(2) SA 354 A, it
is not sufficient for the
applicant in an application for
rescission of a default judgment merely to allege that good
cause
exists in order to set aside the default judgment. Such an applicant
must, in addition
thereto, prove to the court that good cause
indeed exists before the court can rescind the
default judgment.
The duty to do so rests on the applicants. The court stated in the
said
authority that the applicant in an application for rescission
must, in demonstrating the
existence of good cause, furnish at
least an explanation of his default in order to piace the
Court in
a better position to understand how the default took place and assess
his conduct
and motives. Schreiner JA, as he then was, put it in
the following fashion at page 353A:
"It
is enough for the present purposes to say that the defendant must at
least furnish an explanation of his default sufficiently
full to
enable the Court to understand how it really came about and to assess
his conduct and motives."
41.
Nowhere in the application do the applicants furnish any reasons why
they seek an order to upset the second respondent's approval
of
Grant's account nor have they furnished any explanation why they did
not object to the said account. This, in my view, is a
quintessential
matter in which to apply the principle set out in the authority of
Silber v Ozen Wholesalers (Pty) Ltd supra and
followed in many
subsequent decisions. The application to set aside the first and
final liquidation and distribution account of
the estate late Grant
William Joubert or such other liquidation and distribution account in
the said estate cannot succeed.
42.
COSTS
Counsel
for the third respondent has asked that if the application is
dismissed with costs, the applicants should, as a result of
their
conduct preceding this application, be ordered to pay such costs on
attorney and client scale. The reasons furnished by the
counsel for
the third respondents were, firstly, that all the third respondent's
attempts to have the matter amicably settled in
order to avoid
incurring costs were shunned by the applicants; secondly, that
despite the third respondent's undertaking that she
would do nothing
further that would have an adverse effect on the interests of any
party in respect of the property and furthermore
that she would not
in anyway interfere with the second applicant's occupation of the
garden flat located on the property, the applicants
were not prepared
to accept the said undertaking; thirdly, after the third respondent
had informed the applicants that they could
take an order in terms of
prayers two of their notice of motion and the costs to be costs in
the main application; the applicants
informed the third respondent
that they were not satisfied with an order in terms of prayer 2 of
the notice of motion, despite
the fact that it was in their notice of
motion, and that they would then take new relief in the form of a
caveat. As a result of
the conduct of the applicants the respondents
was unnecessarily forced to file an answering affidavit. The fourth
reason was that
after the matter had been formally set down for
hearing and the third respondent had filed her answering affidavit
the applicants
had the matter removed from the roll contrary to the
provisions of Rule 41 of the Uniform Rules of Court which clearly
stipulates
that a person instituting the proceedings may at any time
before the matter has been set down and thereafter only with the
consent
of the parties or leave of the court withdraw such
proceedings.
43.
May a court order one litigant to pay the other litigant's costs on
attorney and client scale? This is possible in order to
mark
disapproval of the conduct of a party. This is what the court stated
in Koetser v SA Council of Town and Regional Planners
1987(4) SA 735
(W) at 744 J -745 A. That a court can make such an order is clear
from the authority of Nel v Waterberg Landbouers
Ko-operatiewe
Vereeniging
1946 AD 597.
In this authority the court stated that such
an order may be made only if special circumstances such as the
conduct of the losing
party or the circumstances which led to the
institution of an action exists and the court considers it just to
make such an award.
I am of the view that in this application, such
special circumstances as may justify the award of cost on an attorney
and client
scale have been established and that the court should not
be too coy to make an appropriate order.
44.
In
the result I make the following order:
1.
The application is dismissed.
2.
The applicants are hereby ordered to pay the costs on attorney and
client scale, the one paying and the other to be absolved.
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Applicant's
Attorneys:Gerhard Botha and Partners Inc.
Applicant's
Counsel: Adv. CP Wesley
Respondent's
Attorneys:Hartzenberg Incorporated
Respondent's
Counsel: Adv. L Uys
Date
Heard:9 February 2012
Date
of Judgment: 24 February 2012