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[2012] ZAKZPHC 67
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Moodley v Ebrahim and Others (10978/2011) [2012] ZAKZPHC 67 (10 October 2012)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. 10978/2011
In the matter between:
SEELAN MOODLEY
................................................................
APPLICANT
and
MOHAMED AFZAL EBRAHIM
................................
FIRST
RESPONDENT
ROOKAYA EBRAHIM
.........................................
SECOND
RESPONDENT
THE REGISTRAR OF DEEDS
................................
THIRD
RESPONDENT
JUDGMENT
Delivered
on 10 October 2012
________________________________________________________
SWAIN J
[1] This matter
originally served before me as an opposed motion on the return day of
a
rule nisi
, in terms of which the applicant sought the
enforcement of a contract for the sale of an immovable property,
which it is common
cause, was concluded between the applicant and the
first respondent.
[2] The first respondent
resisted the application on the basis that he did not have the legal
right to sell the property when he
concluded the sale agreement. He
averred that the second respondent, who is his common law wife, had
the sole legal right to sell
the property and had not conferred upon
him the necessary authority to do so, when he signed the sale
agreement.
[3] It is common cause
that the first respondent was the successful bidder at a sale in
execution, in respect of the property which
forms the subject matter
of the sale agreement between the applicant and the first respondent.
The first respondent contends that
in doing so he represented the
second respondent, who is accordingly entitled to take transfer of
the property from the execution
debtor. The applicant attached to his
founding affidavit copies of two agreements in respect of the sale of
the immovable property
at the sale in execution. It appears from the
papers that Annexure “J” was obtained by the applicant
from Fortune Properties,
being the estate agents acting for the first
respondent and that Annexure “K” was obtained by the
applicant’s
attorney from the Deputy Sheriff. In the one
agreement (Annexure “J”) the first respondent is
reflected as the purchaser,
whereas in the other agreement (Annexure
“K”) the first respondent is reflected as acting on
behalf of the second respondent.
A power of attorney was also
furnished to applicant, in which the first respondent was appointed
as the agent of the second respondent
to purchase the property in
question (Annexure “L” to applicant’s founding
affidavit). Both the contracts of
sale appeared to have been signed
by the Sheriff. The response of the first respondent to these
allegations was to admit that he
concluded the agreement Annexure “K”
to the applicant’s founding affidavit, acting on behalf of the
second respondent.
The first respondent stated that he could not
explain the origin of the agreement being Annexure “J” to
the applicant’s
founding affidavit, except to point out that it
was incomplete and different to Annexure “K”.
[4] I therefore referred
the matter for the hearing of oral evidence
“on the
issue whether or not the first respondent was the purchaser of the
property situated at 2 Tureen Place, Westville
at the sale in
execution held on 27 July 2011”.
Because the
Sheriff had on the face of it, signed both contracts, I ordered the
applicant to ensure that the Sheriff was subpoenaed
to attend the
hearing.
The
onus
of proof
[5] At the outset Mr.
Joubert, who appeared for the applicant, and Mr. Troskie S C, who
appeared for the first and second respondents,
advised me that they
were in disagreement as to which party bore the
onus
of
proving the central issue, namely whether the first respondent
possessed the legal right to sell the property to the applicant.
[6] Mr. Joubert submits
that the applicant relies upon the agreement of sale and it is the
first and second respondents who raise
as a special defence, that the
first respondent had no authority to conclude the agreement. Mr.
Troskie however submitted that
the
onus
must be determined by
the application of the principle enunciated in
Kriegler v Minitzer
1949 (4) SA 821
(A)
In Kriegler, it was held
that the plaintiff had to prove all the express and implied terms of
a contract relied upon by him, even
where the defendant has put in
issue an alleged term which is denied by the plaintiff. It made no
difference that the plaintiff
might have to prove a negative, being
the non-existence of the alleged facts relied upon by the defendant.
However, although
“the plaintiff has to establish the
pre-requisites for the defendant’s liability”
this
“does not necessarily require him to prove or disprove
every disputed fact. If the defendant has put in issue a fact
preventing
the enforceability of plaintiff’s claim, such as his
own lack of contractual capacity, fraud perpetrated by the plaintiff,
the contract’s illegality or a provision rendering it contrary
to public policy, the defendant will have to prove his allegation.
These are seen as facts relied upon by defendant and falling outside
plaintiff’s cause of action”.
Law of Evidence –
Schmidt and Rademeyer at pg 2 – 16
The applicant’s
cause of action is based upon the first respondent’s
entitlement in law to sell the property as principal.
The first
respondent’s defence is that he did not possess the legal right
to sell the property which right was possessed
by the second
respondent. The first respondent has accordingly raised his own lack
of contractual capacity, as a fact preventing
the enforceability of
the applicant’s claim. That the first respondent also alleges
that he did not possess the authority
of the second respondent to
sell the property, is simply an additional ground upon which he
relies, for his alleged lack of contractual
capacity.
[7] I accordingly
disagree with the submission of Mr. Troskie that the applicant is
obliged to prove the first respondent’s
legal right to sell the
property, as part of the applicant’s cause of action. I agree
with the submission of Mr. Joubert
that the defence raised is in the
nature of a special defence, which must be proved by the first and
second respondents.
[8] Although there was a
dispute between Counsel as to which party bore the
onus
of
proof, Mr. Troskie volunteered that the first and second respondents
would begin leading evidence. The issue for determination
is
accordingly whether the first and second respondents proved on a
balance of probabilities that the first respondent acted as
an agent
of the second respondent, when he successfully bid for the purchase
of the property at the sale in execution conducted
by the Sheriff,
with the result that the second respondent was possessed of the legal
right to re-sell the property.
The applicability of
the Alienation of Land Act No. 68 of 1971 and the issue of agency
[9] Before dealing with
the merits of the matter, it is necessary to deal with the extent to
which the provisions of the Alienation
of Land Act No. 68 of 1971,
are of relevance in determining the present dispute, and the issue of
whether the first respondent
(if not entitled to sell the property as
principal) was authorised by the second respondent to sell the
property on her behalf.
Mr. Troskie submitted that “
the
agreement relied upon does not comply with the Alienation of Land Act
in that it is not signed by the seller. This aspect is
central to the
dispute between the parties”.
However, a
resolution of the dispute between the parties, as to whether the
first respondent had the legal right to sell the property
as
principal, also determines whether the requirements of the Act were
fulfilled. This is because if the first respondent possessed
such a
right, he signed the agreement as seller, in accordance with the Act.
If he did not possess such a right, the sale agreement
is
unenforceable without any further need to consider the requirements
of the Act.
[10] As regards the issue
of whether the first respondent was authorised by the second
respondent to sell the property on her behalf
(if the first
respondent did not have the legal right to sell as principal) the
applicant alleges in the papers that the
“overwhelming
implication”
is that the first respondent
possessed such authority. Mr. Joubert accordingly submitted that it
could be inferred that because
of the relationship between the first
and second respondents, the first respondent possessed implied
authority from the second
respondent, to conclude the sale agreement
with the applicant and that the second respondent is estopped from
denying the first
respondent’s authority to enter into the sale
agreement on her behalf. This submission however overlooks the
requirement
that the deed of alienation in terms of the Act must be
“signed by the parties thereto or by their agents acting
on their written authority”.
It is clear that the
applicant in seeking to enforce such a contract, must allege and
prove compliance with the statutory requirements.
This is because the
act provides that no alienation of land shall be of any force and
effect, unless the specified requirements
have been complied with
Christie –
The Law of Contract in South Africa
6
th
Ed
pg 357 n 36
No evidence was led by
the applicant to prove that the first respondent possessed the
written authority of the second respondent
to sell the property and
consequently the applicant cannot enforce the sale agreement on the
basis that the first respondent was
authorised by the second
respondent to do so.
[11] I see nothing
anomalous in the
onus
being
placed upon the first and second respondents, to prove that the first
respondent did not have the necessary contractual capacity
to sell
the property as principal, whereas the
onus
to prove compliance with the Act, namely that the first
respondent signed the agreement as seller, rests upon the applicant.
This
is simply because the contract is valid if “
from
the contract as a whole it would be clear to the other party that the
signature indicated the assent of the buyer or the seller
to the
contents of the document”.
Christie at pg 120
The first respondent
admits signing the sale agreement as the seller and assenting to its
contents, but denies he had the legal
right, or the capacity to do
so.
The documentary
evidence relevant to the merits
[12] Turning to the
merits of the dispute. The documentary evidence which is relevant to
the issue in dispute is the following:
[12.1] A copy of the sale
agreement which the applicant says was supplied to him by Fortune
Properties, the estate agents representing
the first respondent, in
which the first respondent is reflected as the purchaser (Annexure
“J”). The first respondent
said in his answering
affidavit, that he had no knowledge as to the origin of this document
and although this document was relied
upon by the applicant in his
founding affidavit, Mr. Joubert stated that he had abandoned any
reliance upon this document and now
relied upon the agreement
referred to in paragraph [12.3] below.
[12.2] A copy of the sale
agreement which the applicant says was obtained by his attorney from
the Sheriff, in which the first respondent
is reflected as the buyer
on behalf of the second respondent (Annexure “K”). The
first respondent said in his answering
affidavit, that this was the
agreement that he concluded. The applicant was also furnished with
the power of attorney, in terms
of which the first respondent was
authorised to represent the second respondent in purchasing the
property (Annexure “L”).
[12.3] A copy of the sale
agreement which was handed to the legal representative of the
execution creditor, eThekwini Municipality
at the sale, Chantal
Ottino (Annexure “CO1”) in which the first respondent is
reflected as the purchaser of the property
as principal.
[12.4] A copy of the sale
agreement which appears to be identical to Annexure “K”,
save that the description of the
first respondent, has been qualified
in an additional location as
“o.b.o. R. Ebrahim”
and the signature of the first respondent is qualified
in a similar fashion, appears as part of the applicant’s bundle
of
documents (Exhibit “A” pgs 77 – 83). The first
respondent confirmed that he had qualified his name in his own
handwriting and that the final page of this agreement was identical
to the final page of Annexure “K”, save that he
had
qualified his signature with the designation
“o.b.o. R.
Ebrahim”.
The first respondent stated that this
must have been his copy which he had given to his attorney.
[13] It is a misnomer to
speak of these agreements as copies, in the sense that there was an
original agreement from which copies
were made, because the first
respondent explained that because there was no photo copying machine
where the sale was conducted,
three copies of the agreement were
completed and signed. One copy was retained by the Sheriff, one copy
was handed to the attorney
representing the execution creditor and
one copy was retained by the buyer, namely the first respondent.
[14] Before analysing
each of these contracts it is necessary to determine whether the
applicant is restricted to relying upon Annexure
“J” to
the applicant’s founding affidavit in support of his contention
as the agreement concluded by the first
respondent acting in his
personal capacity, or whether the applicant may now rely upon the
agreement which Ms Ottino says she was
handed at the sale (Annexure
“CO1”) in which the first respondent is also reflected as
acting in his personal capacity.
The fact that the applicant as a
layman said that this was the agreement he relied upon cannot be
decisive of this issue.
Record pg 81 lines 5 –
6
That the applicant should
wish to rely upon Annexure ”CO1” is apparent from an
examination of Annexure “J”.
From a comparison of this
agreement with the other copies of the agreement, it is readily
apparent that it could not have been
one of the copies completed at
the sale in execution. This is because it refers to an incorrect
location where the sale was held,
the incorrect conveyancing
attorneys are reflected and it contains no description of the
property. As pointed out above, Mr. Joubert
stated that he did not
rely upon this copy of the agreement but relied upon Annexure “CO1”
in support of the applicant’s
contention that the first
respondent purchased the property in his personal capacity. Mr.
Joubert submitted that the applicant
never sought a declarator that
Annexure “J” was the agreement that the first respondent
had concluded to buy the property,
but that Annexure “J”
was simply a part of the evidence which the applicant had been able
to obtain, together with
Annexures “K” and “L”,
at the time the urgent application was launched. The agreement,
Annexure “CO1”,
was only subsequently obtained by the
applicant and put up in reply, together with the affidavits of Ottino
and Shewbaran, confirming
its authenticity. Mr. Joubert submits that
the conclusion of the agreement of purchase by the first respondent
at the sale in execution,
is simply part of the
facta probanda
to prove that the first respondent bought the property in his
personal capacity and was consequently able to resell the property
to
the applicant acting in the same capacity. Mr. Troskie submitted that
the applicant could have changed his reliance upon Annexure
“J”
in reply, but did not do so. This is correct as the applicant alleged
in reply, that the first respondent had failed
to give a satisfactory
explanation for the existence of Annexure “J”. However,
the applicant did state that he had
been placed on terms by the first
and second respondents to file his replying affidavit, which he did
so out of the period specified
in the Rules. Thereafter the applicant
filed supplementary affidavits by Ottino and Shewbaran relating to
the additional agreement
of sale (Annexure “CO1”) now
relied upon by the applicant. The applicant sought condonation for
the late filing of
these affidavits explaining that he was not aware
that there were witnesses to the sale in execution and had only
managed to contact
Ottino on 16 May 2012, as she had left the employ
of Ndamase Incorporated, the conveyancing attorneys. It was at this
stage that
Annexure “CO1” came to light. No objection was
however raised by the respondents to the admission of these
affidavits.
Although it is clear that an applicant will not be
allowed to introduce a different claim, based upon a different cause
of action
in reply
Triomf Kunsmis
(Edms) Bpk v A E & C I Bpk
1984 (2) SA 261
(W)
at 270 A
this is not what the
applicant did. The applicant’s cause of action remained the
same i.e. that the first respondent bought
the property in his
personal capacity, all that was altered was the documentary evidence
the applicant relied upon, in support
of that assertion. The
applicant only discovered this documentary evidence after launching
the application in the circumstances
described by the applicant in
the supplementary replying affidavit accompanying the affidavits of
Ottino and Shewbaran. Having
referred the dispute to the hearing of
oral evidence, the respondents were well aware that the evidence of
Ottino and Shewbaran
would be led and that Annexure “CO1”,
which the first respondent admitted having completed, would be
tendered in evidence
in support of applicant’s contention, that
first respondent purchased the property in his personal capacity.
When regard
is had to the disadvantage the applicant suffers from in
not having been present at the sale in execution, and the absence of
any
prejudice to the respondents, in the applicant now placing
reliance upon Annexure “CO1” in support of his assertion,
rather than Annexure “J”, I can see no basis for holding
that the applicant is precluded from relying upon Annexure
“CO1”
and not Annexure “J”, as evidence in support of
applicant’s contention, that the first respondent
purchased the
property in his personal capacity.
[15] Turning to an
examination of the three agreements of sale. As regards Annexure
“CO1” it should be noted that this
agreement was also
annexed to the affidavit of Shewbaran as Annexure “BS1”.
Because Annexure “BS1” was
however the copy which was
referred to during the trial, I will for the sake of consistency also
do so. The first respondent admitted
that he had completed the
details of the purchaser appearing at page 114 of the application
papers.
Record pg 56 lines 20
– 25
The first respondent also
admitted that he had completed what appears at page 115 of the
application papers.
Record pg 60 lines 1 –
10
The first respondent also
admitted that there were two witnesses to the signature of this
agreement, but was unable to say who they
were.
Record pg 58 line 6
Record pg 63 line 18
The first respondent
agreed that this agreement did not reflect that he was acting on
behalf of the second respondent
Record pg 63 lines 15
– 16
and that it was his
signature at page 115 of the application papers
Record pg 58 line 2
and that it was one of
the agreements that was completed at the auction
Record pg 58 line 20
and did not dispute that
this was the copy of the agreement that was taken away from the sale
in execution by Ottino
Record pg 57 line 24 -
pg 58 line 2
Record pg 61 lines 2 –
3
but could not remember
whether he had given the agreement to the attorneys.
Record pg 10 line 17
Ottino stated that this
was the document she received after the
property had been sold at
the sale in execution
Record pg 93 lines 1 –
10
and Shewbaran stated that
this was the document she received from Ottino.
Record pg 85 lines 6 –
15
[16] Turning to a
consideration of Annexure “K” to the applicant’s
founding affidavit. First respondent stated
that he wrote the details
of the buyer appearing at page 51 of the application papers.
Record pg 7 line 23
Record pg 51 lines 1
and 12
The first respondent
stated that the Sheriff had written in all of the details on pg 52 of
the application papers, except for the
signature of the single
witness and the signature of the first respondent.
Record pg 8 lines 23 –
24
Record pg 60 line 25
The first respondent
agreed that he had not written
“on behalf of”
the
second respondent when he completed the details of the purchaser.
Record pg 53 lines 7 –
14
The Sheriff had however
added
“o.b.o. R. Ebrahim”
to the
description of the purchaser
“M.A. Ebrahim”
at
page 52 of the application papers.
[17] Turning to a
consideration of the third copy of the sale agreement, appearing at
pages 77 – 83 of the bundle Exhibit
“A”. The first
respondent agreed that it was his handwriting which appeared at page
82 completing the details of the
purchaser which included his having
written
“o.b.o. R. Ebrahim”.
Record pg 53 line 8
Record pg 53 line 14
Record pg 53 line 21
The first respondent
agreed that there was only one witness to this agreement
Record pg 58 line 6
and that this must be his
copy which he had given to his attorney.
Record pg 53 lines 13
– 14
Record pg 53 line 19
[18] What this reveals is
that Annexure “BS1” is the only copy of the sale
agreement in which all of the details of
the purchaser were completed
entirely by the first respondent in his own handwriting, and in which
he is reflected as the purchaser.
This is also the only agreement
witnessed by two witnesses, whose signatures differ from the
signature of the single witness, which
appears on both Annexure “K”
and the agreement forming part of Bundle “A”. Annexure
“BS1” is
the only agreement whose provenance, namely that
it was handed to the representative of the conveyancing attorneys
after the sale
and kept by them, is not subject to dispute. As
regards Annexure “K” the first respondent in completing
the details
of the purchaser reflected himself as the purchaser, his
status as an agent for the second respondent, being added by the
Sheriff
on the following page. As regards the agreement forming part
of Bundle “A”, the first respondent qualified the details
of the purchaser appearing on both pages as acting on behalf of R.
Ebrahim, the second respondent. What is striking is that when
Annexure “K” and the agreement forming part of Bundle “A”
are compared they appear to be identical, except
that the status of
the first respondent as agent for the second respondent, has been
qualified in the manner referred to above.
When I put this
proposition to Mr. Troskie he responded that although they looked
similar, it would be dangerous to draw such a
conclusion, as they
were all photocopies. What is clear however is that the agreements
which the first respondent says were in
the possession of the Sheriff
and himself after the sale, reflect him as the purchaser on behalf of
the second respondent, whereas
the agreement in possession of the
conveyancing attorneys, has no such limitation of his capacity.
[19] Whether any
inference may be drawn from this distinction must await a
consideration of the evidence of the first respondent
and the
applicant, as well as the evidence surrounding the power of attorney,
which appears as Annexure “L” to the
founding affidavit.
The evidence of
relevance to the merits
[20] The first respondent
stated that a power of attorney was given to
the Sheriff before the
auction, being Annexure “L” to the applicant’s
founding affidavit.
Record pg 53
First respondent says he
personally handed this document to the Sheriff before the auction
Record pg 9 lines 16 –
19
and that he had completed
the power of attorney in his handwriting
Record pg 24 lines 24
– 25
except where his wife “
R.
Ebrahim”
, the second respondent, had placed her
signature.
Record pg 25 lines 1-
5
The power of attorney
also appears at page 84 of Exhibit “A” and the first
respondent said he was telephoned by Shewbaran
two days after the
auction to sign transfer documents and he told her that the purchaser
was his wife, the second respondent.
Record pg 11 line 15 –
pg 12 line 4
The first respondent said
he told her
“Contact Mrs R. Ebrahim she will liaise with
you for documentation to be signed”
Record pg 57 lines 20
-22
and that
“she
needs to consent to transfer”
Record pg 64 lines 23
- 25
and that the name
“Bharti”
written at the top of this
document, was the name of this person who had contacted him.
Record pg 64 line 15
Shewbaran confirmed that
she had contacted the first respondent on 29 July 2011 to confirm
that they would be proceeding with the
transfer of the property he
had bought, having obtained his contact number from “BS1”
(page 114)
Record pg 85 line 16
to pg 86 line 1
and confirmed that the
first respondent said he had “
signed on behalf of R.
Ebrahim”
and she asked him to bring in the power
of attorney, which he said he would do by 02 August 2011, but she did
not see him because
she had already left the firm by then.
Record pg 86 lines 5 –
9
Record pg 88 lines 10
– 12
She also confirmed that
the name
“Bharti”
on the power of
attorney at page 116 of the application papers, meant that the power
of attorney was marked for her attention, but
she was not sure on
which date it came through, because she left the next day.
Record pg 88 lines 15
– 25
[21] Turning now to a
consideration of the evidence of the first respondent. The first
respondent was a most unsatisfactory witness,
who looked
uncomfortable whilst giving evidence, interrupted before questions
were fully put to him, did not complete his answers
to questions in a
coherent fashion, dropped his voice in doing so, and because of this
it became difficult to hear his complete
answer at times. As will
become apparent his evidence was replete with contradictions and
improbabilities.
[22] It is necessary to
note at the outset that the first respondent said that his occupation
was a
“property speculator”
Record pg 5 line 9
and that he bought and
sold properties at a profit, which he from time to time bought at
auction sales by the Sheriff. He agreed
that this was his business.
Record pg 5 lines 9 –
16
He said that he bought
and sold between ten to fifteen properties per month.
Record pg 15 lines 20
– 21
and Fortune Properties,
who rented space from him in the building where his office was
located, would act as agent to look for buyers
for these properties.
He said most of his dealings were conducted through Fortune
Properties, but that he had no financial interest
in this business.
Record pg 15 lines 8 –
24
The first respondent
agreed it was quite a big business.
Record pg 16 line 5
[23] The first respondent
said that the second respondent, stayed at home to look after their
three children and when it was put
to him by Mr. Joubert, that she
was essentially a housewife he replied
“If you want to
put it like that”
and when asked whether there was
any other way to put it replied
“No”
but
then after a great deal of vacillation added
“No, no,
no, I am saying if she wants a property she will tell me to buy and I
will be happy to buy”
Record pg 16 line 16 –
pg 17 line 3
The first respondent then
stated that the second respondent had no
financial interest in his
business and when Mr. Joubert put to him
“so
she is a housewife, you do the
business?”
he replied
“That is
right”.
Record pg 17 –
lines 4 – 7
[24] The first respondent
agreed that the second respondent did not know which properties he
bought and sold, because there were
so many of them and that he used
his wife as the principal, when buying properties about twenty
percent of the time.
Record pg 17 lines 8 –
15
First respondent said
that this was done for tax purposes because as first respondent
explained
“I mean under the tax law in certain limits
you are allowed to buy for trading purposes and so [inaudible]”.
Record pg 18 line 7
First respondent said
that
any profit on sales where she was reflected
as the buyer, was reflected as her income and were paid for by her
from her own income,
which she got from her family. He added that she
also had her own family funds.
Record pg 18 line 16
Record pg 19 line 5
The second respondent
would be obliged to pay for any property he bought in her name and he
accordingly discussed with her in advance,
what he was going to buy
on her behalf and would obtain her approval before buying a property
on her behalf at a Sheriff’s
auction. The second respondent
would not attend any auctions and that is why she furnished him with
a power of attorney, but she
would go and check on the property
before the auction.
Record pg 19 lines 8 –
21
Record pg 20 lines 4 –
7
The second respondent
would accordingly pay the tax on any profit she made.
Record pg 19 line 15
First respondent was
adamant that he and the second respondent ran entirely separate
businesses and his purchase of properties on
her behalf, was not
merely an arrangement to reduce his taxable income and thereby reduce
his tax payable.
Record pg 20 line 19
Record pg 21 line 5
[25] This was in direct
conflict with his earlier answer that the reason why he bought twenty
percent of properties in second respondent’s
name was for tax
purposes. I find the inference irresistible that the reason for this
conflict is that the first respondent feared
that his original answer
could be regarded as a form of tax evasion, and then set out to
counter this danger, by stating that the
second respondent was
effectively running her own business by buying the properties out of
her own funds, taking the profits and
paying her own tax. A further
inference which may be drawn from this direct conflict, is that the
first respondent appreciated
that the likelihood of whether he had
acted on behalf of the second respondent in buying the property in
question, would be enhanced
by the second respondent being depicted
as a businesswoman in her own right, buying and selling properties
for profit, rather than
simply a housewife whose name the first
respondent used for tax purposes. This evidence of the first
respondent was also in conflict
with his earlier statement that
second respondent was a housewife and he did the business. When this
latter contradiction was put
to the first respondent the transcript
is illuminating:
“
So your
wife on her own is a fully fledged businesswoman? -- she is –
okay ...[inaudible].
Not a housewife .....? ---. It is a
housewife ... [inaudible] she sells prop – okay, .... [in
audible] businesswoman, you
can put it that way”
Record pg 21 lines 6 –
9
[26] In amplification of
the second respondent’s rôle in running her own business,
the first respondent said that the
second respondent obtained a list
from the Sheriff’s office a week in advance of the sale of the
properties for sale and
would then inspect the properties between 11
a.m. when she finished her housework and 2.30 p.m. when she fetched
their children
from school.
Record pg 21 line 10 -
pg 22 line 4
First respondent agreed
that second respondent would scout for properties and tell him which
property she wanted to buy and she
would determine the price she
wanted to pay, based on the market value because
“she
does her homework on the stats for the area”
and
would instruct him not to bid above a certain price.
Record pg 22 lines 7 –
18
The first respondent
would look at any properties she heard about and which she was
interested in purchasing and would then give
him a power of attorney
for that particular property, because that was required by the
Sheriff.
Record pg 23 line 24 -
pg 24 line 1
He would accordingly go
to the sale with the necessary power of attorney which at times he
made out in his handwriting, but at other
times in her handwriting.
Record pg 24 lines 13
– 18
If he filled out the
power of attorney she would have to tell him the address of the
property to be included in the power of attorney.
Record pg 25 lines 6 –
10
[27] In the present case
the second respondent had seen the property and had said to the first
respondent she wanted him to bid
on the property. First respondent
said he had not seen the property and consequently went and bid
without knowing what the property
was.
Record pg 25 lines 16
– 25
The second respondent had
told him he should bid to R1.6M. She had seen the property from the
outside and had said she liked the
area and her family was close by,
but did not say to him that she wanted it as the family home, because
she had not seen the inside
of the home. First respondent said he did
not question her at all about this, just accepted what she said and
was not puzzled by
what she had said.
Record pg 26 line 7
Record pg 26 line 12 –
pg 27 line 25
[28] The first respondent
said that he and the second respondent went to see the property on
the afternoon of the sale, when they
were able to gain access to the
interior of the house, because the tenant or the previous owner was
there. First respondent said
the second respondent was excited about
the property and when asked whether she liked it as an investment to
be sold for a higher
price, or whether she liked it for a different
reason he replied
“
-- My
impression at that time, was – it was like a fifty/fifty,
meaning I did not get a true - you know what I am trying to
say,
[intervention]
No you have to say things --- All
right. Basically it was, ‘Yes I like this property because it
is a nice property, it is
what we require, you understand what I am
saying ?’
No it is what we require for ....? If
you can carry on there. -- Like a family.
A
family home
So on the afternoon when the property
was sold to you at the auction, you
already knew that your wife wanted it
as a family home and she was excited --- It was a day after that,
that is right, you are correct...”
Record pg 29 line 21 –
pg 30 line 7
Mr. Joubert however then
put to him that he had said earlier that it
was the same afternoon,
to which he replied that she had said she liked the property but
“we
did not put a timing to it to say, yes want to move it there, it was
not like that. Because to get a home and to move,
it is a big thing.
But you do not just say ‘I want this house and move in
tomorrow’ it is not like that”
Record pg 30 lines 8 –
14
and when he was again
asked to explain what the second respondent was excited about he
replied
“The house itself”
Record pg 30 line 18
and when asked again
whether she liked the house as an investment to be sold
at
a higher price or as a possible family home he replied
“
I could not
answer that at that time, it was – it was her property, you
know, it was bought on behalf of her. I cannot answer
for her what
she wanted at that time”
Record pg 30 lines 19
– 22
First respondent then
when questioned by me said that at the time of their visit that
afternoon, the second respondent was excited
by the house as their
family home and wanted to move the family there, but there was no
decision taken to move in straight away
“because it is a
big move, you know, there is nothing in buying a house and moving in
tomorrow”.
Record pg 31 lines 15
– 21
It is therefore clear
that on the first respondent’s evidence, on the day he bought
the property at the sale in execution,
he knew that the second
respondent was excited about the property as a family home, to which
she wanted to move their family, but
no decision was taken as to when
the move would take place. When Mr. Joubert then asked him “
And
the next day, you said something about the next day something
happened, or did – or am I wrong”
to which
first respondent replied
“No, no, no”
and
Mr. Joubert repeated
“Nothing happened”
to
which the first respondent replied
“No”.
The first respondent had
however previously said that it was the following day he was aware
that the second respondent was excited
about the house and
wanted it as a family home.
Record pg 30 line 7
[29] The issue of when
the first respondent became aware of the second respondent’s
wish for the property as a family home,
is of great significance in
relation to the time when and circumstances under which, the first
respondent gave a mandate to Fortune
Properties, to sell the
property.
[30] It is clear from a
reading of the evidence of the first respondent,
that he appreciated the
illogicality of Fortune Properties having a mandate to find a buyer
for the property, if the second respondent
wished to keep the
property as their family home, right from the day upon which he
bought the property at the sale in execution.
This was graphically
illustrated by his reluctance to admit that they had such a mandate.
Mr. Joubert asked first respondent
“
In order for
Fortune Properties to market the property they need a mandate –
not so?”
to
which he replied
“
No
mandate, no ....[inaudible] sell any properties....[inaudible]
properties...[inaudible]”
.
Record pg 36 lines 14
– 16
After a great deal of
vacillation he admitted that the agent at Fortune Properties
telephoned him on the day of the sale and asked
him whether he had
bought this property and he told them that he had bought it. First
respondent said he knew that the agent had
telephoned him, so that he
could go and sell the property
Record pg 38 lines 1 –
8
but he did not tell the
agent that the second respondent wanted to keep the property and when
asked why he replied
“I did not tell him - I mean I did
not tell him that the wife is keeping, because normally we just buy,
we sell”.
Record pg 37 lines 3 –
8
Later however after a
great deal of vacillation he said that the agent telephoned at 10.30
a.m. after the sale to find out which
properties he had bought and
when asked again why he did not tell him it was not for sale, he
replied
“At that time we did not –it was not a
hundred percent that the wife is keeping it”.
Record pg 39 lines 5 –
15
He then added that at
this stage the second respondent had still not seen the inside of the
house.
Record pg 39 –
line 16
It is quite apparent that
the first respondent’s vacillations and evasiveness about the
precise time the second respondent
made it clear she wished to keep
the property as a family home, as well as a similar degree of
vacillation and evasiveness by the
first respondent as to when the
agent was given a mandate to sell the property, was caused by the
contradiction between the reason
given by the first respondent as to
why he could not sell the property, namely that the second respondent
wished to keep it as
a family home and the fact that the property was
nevertheless marketed by Fortune Properties and ultimately sold by
the first respondent
to the applicant.
[31] Having sought to
explain this contradiction in this manner, the first respondent was
then faced with the problem of explaining
why the agent however
continued to market the property, after the first respondent knew the
second respondent, wished to keep it
as the family home.
[32] The first respondent
was accordingly asked whether between the date that he bought the
property, being 27 July, and the date
that the agreement was signed
with the applicant, being 09 September, the property was marketed to
which he replied
“No, no, it was not at that time.
Probably two days it was – till she made her mind up, two or
three days, till she
made her mind up that she wants to keep the
property”.
Record pg 41 lines 3 –
8
He was then asked by me
whether he then told the agent that they were no longer selling it,
to which he replied
“That is right, that is – in
fact to be honest, I did not tell him at that time because it was not
necessary for him
to market the property”.
Record pg 41 lines 13
– 15
He then said however that
he had told the agent three to four days after this that the
particular property was no longer on the
market.
Record pg 41 lines 16
– 25
The first respondent then
agreed that the agent must have been
“confused”
,
because he still carried on marketing the property, even though he
had been told not to.
Record pg 42 lines 1 –
4
It is quite obvious that
the agent would not have continued marketing the property, if he had
been told not to do so by the first
respondent. The first respondent
has quite clearly been untruthful in making this
assertion. That he has
been dishonest in this regard also undermines his assertion that he
did not wish to sell the property, because
the second respondent
wished to keep it as a family home.
[33] Allied to this is
the difficulty the first respondent experienced in explaining why he
concluded a contract of sale with the
applicant, for the sale of the
property, if he knew the second respondent did not wish to sell it.
The first respondent said that
he would not think of selling the
property without the second respondent’s express consent.
Record pg 32 lines 4
-6
Record pg 32 lines 12
– 13
Mr. Joubert then put it
to the first respondent that it logically followed
that he must have sold
the property to the applicant, with her permission to which he
replied
“No”.
Record pg 32 lines 14
– 15
After a great deal of
vacillation and obfuscation, when asked to explain why he sold the
property without the second respondent’s
permission he
volunteered the following explanation:
“
It was –
they mentioned which house, but it as a misunderstanding for another
property, but which I accept negligence there”.
Record pg 34 lines 8 –
10
I then asked the first
respondent whether he was saying that he did
not realise he was
selling the property that the second respondent wanted he replied
“That is so ....[inaudible] That is right”.
Record pg 34 lines 11
– 13
When I put it to him that
because he was speculating on the property,
he would have to know
which property it was, in order to know how
much he paid for it and
how much he could get for it, he agreed.
Record pg 34 lines 16
– 20
He said he was only
alerted to his error when he was telephoned by the attorney to sign
the transfer documents.
Record pg 34 lines 23
– 25
He agreed that the
property was correctly described in the agreement of sale
Record pg 35 lines 16
– 17
and when I asked him what
alerted him to the fact that it was the wrong property he replied as
follows
“
When she
told me actually the physical – when she told me to come and
sign documents I asked her ‘Now which property?’
and she
told me the buyer – the agreement was sent by the agent to the
buyer”
Record pg 35 line 23 –
pg 36 line 2
His response was
“....sorry it is on the wife’s name and I cannot
sell the property”.
Record pg 35 line 1
When I asked first
respondent whether he looked at the agreement before signing it to
see what the address was he replied as follows:
“
To be
honest, at that time, we are signing document [inaudible] we just
sign and send it, as an agent we just ...[intervention]”.
Record pg 43 lines 12
– 14
When I asked him how he
decided the price offered was a reasonable price and that to do so he
had to know what he had paid for the
property on the auction, to
decide whether it was a good business deal he replied
“It
was totally on the profit margin of it, which we ....[intervention]”.
When I then put it to him
that he then had to know exactly which property he was selling he
replied
“That is right “
Record pg 43 lines 17
– 23
but maintained that he
thought it was another property he was selling.
Record pg 44 line 1
However, when I pointed
out to him that the explanation he had given as to why he signed the
agreement had not been advanced anywhere
in his affidavits, he agreed
that the reason he had signed the agreement in his personal capacity
and did not get his wife’s
consent, was that he thought he was
selling a property other than the property his wife wanted for a
family home.
Record pg 44 line 8
–pg 45 line 25
When I asked why this
explanation was not put in his affidavit and that
it was not simply that he
had forgotten the property was bought by his wife, he did not answer
and simply said
“I do understand that”.
Record pg 45 lines 22
– 25
When I asked him what the
address of the other property was he replied it was 6 Tedford Place,
Westville
Record pg 47 lines 4 -
5
and that he had bought it
on his own name at the same auction.
Record pg 47 lines 15
– 16
The property in question
in the present matter is situated at 2 Tureen Place, Westville
Application papers pg
18
[34] The following
conclusions may be drawn from the analysis of the first respondent’s
evidence:
[34.1] The first
respondent was dishonest concerning the extent
to which the second
respondent conducted her own business, in speculating on the purchase
and sale of properties. The original explanation
tendered by the
first respondent as to why he purchased twenty percent of properties
in second respondent’s name for tax
purposes, was quite plainly
correct. The reason why the first respondent fabricated the nature
and extent of the second respondent’s
business was quite
plainly to avoid any inference that he was involved in tax evasion
and to bolster his statement that it was
bought in second
respondent’s name, and that she was not prepared to sell the
property which was hers.
[34.2] The first
respondent was dishonest in maintaining that the second respondent
wished to keep the property as a family home,
as the reason for
refusing to sell the property. If this was true he would not have
permitted Fortune Properties to market the
property for six weeks,
culminating in finding the applicant as a buyer.
[34.3] The first
respondent was dishonest in maintaining that he was mistaken as to
the identity of the property when he sold it
to the applicant. This
explanation was never advanced in the first respondent’s
affidavit and in order to agree upon the
price, the first respondent
as an astute businessman, whose sole occupation is property
speculation, would have to have known precisely
what he paid for the
property, and consequently the identity of the property.
[35] These conclusions
undermine the credibility of the first respondent’s evidence as
to the involvement of the second respondent
in the purchase of the
property, as well as her involvement
in the first respondent’s
refusal to sell the property and the reasons advanced for refusing to
sell. Mr. Troskie in reliance
upon the decision in
Body Corporate of
Dumbarton Oaks v Faiga
[1998] ZASCA 101
;
1999 (1) SA 975
(SCA)
submitted that even if
the first respondent’s evidence was found to be unreliable in
regard to why the property was marketed
by the estate agents, that
the second respondent was not simply a housewife and that he made a
mistake as to the identity of the
property when selling it, that this
did not justify a rejection of his evidence in its totality. In Faiga
the Supreme Court of
Appeal stated the following at pg 979 I to 980 A
“
The Judge’s
failure to decide the case without regard to the wider probabilities
is a clear misdirection and entitles us to
reassess Mrs Shiloane’s
evidence. It was also wrong of the Judge to consider that a
non-acceptance of her evidence of necessity
requires a finding that
she is a deliberate liar and perjurer (at 661B-C). That is an
emotional approach. In a civil trial the
question is whether her
evidence is, on the probabilities, correct. Few witnesses whose
evidence is not accepted can be described
as deliberate liars and
perjurers”
.
Mr. Troskie submitted
that the evidence of the first respondent had to be considered
together with the copies of the agreement of
sale, the power of
attorney and the statement of the first respondent to the
conveyancing attorney, three days after the sale that
the second
respondent was the buyer. I agree that the evidence of the first
respondent obviously has to be considered together
with this
evidence, in deciding whether the respondents have discharged the
onus
of proving on a
balance of probabilities that the first respondent did not possess
the legal right to sell the property to the applicant.
[36] The documentary
evidence is not determinative of this issue, but must be weighed
together with all of the evidence. As pointed
out above, the only
copy of the agreement whose provenance, meaning its origin and that
it was kept after the sale by a party who
has no interest in the
dispute, is Annexure “BS1”, whose authenticity was
confirmed by Shewbaran and Ottino. As pointed
out above, this is the
only copy of the agreement which according to the first respondent
was completed entirely by him and in
which he is reflected as the
buyer. There is no mention of his buying on behalf of the second
respondent. I find the first respondent’s
explanation for this
to be unconvincing. If the first respondent was buying the property
on behalf of his wife, he had not seen
the property and which he had
been expressly authorised to buy on her behalf in terms of the power
of attorney, why would he fail
to simply qualify his status as the
buyer? The first respondent’s explanation that this was caused
by the urgency in completing
the copies of the sale agreement before
the next sale, I find unconvincing. Such urgency did not prevent him
from completing this
agreement with all the other necessary details.
Turning to the other two copies of the agreement, namely Annexure
“K”,
which it appears is the Sheriff’s copy, and
the copy appearing at pages 77 – 83 of Exhibit “A”,
which it
appears is the first respondent’s copy. It is quite
obvious that the Sheriff’s evidence on what occurred at the
auction
sale, particularly with regard to the completion of the
agreements of sale was both relevant and necessary. It was for this
reason
that I directed that he be subpoenaed and be present at the
hearing. I was informed by Counsel that the Sheriff was at Court. Mr.
Troskie in fact, after the first respondent had completed giving his
evidence, asked for a short adjournment to enable him to speak
to the
Sheriff and decide whether he wished to call him to give evidence or
not. After the adjournment Mr. Troskie advised me that
the first
respondent would not present any further evidence. Mr. Joubert
submits that an adverse inference should be drawn against
the first
respondent, for failing
to call the Sheriff and to a lesser extent, the
second respondent and the
estate agent, Mr. Raath.
[37] In the case of
Sampson v Pim
1918 AD 657
at 662
Solomon J A had the
following to say:
“
There is
only one other observation I desire to make. It is very significant
that
Van der Bijl, who was in the sidecar
attached to the plaintiff’s cycle, was not called as a witness
by him. He had been subpoenaed,
and was available, but was not put
into the box. The inference is irresistible that his evidence would
not have supported the plaintiff’s
case. It might of course
have been negative, as he may not have been keeping a look-out and so
may not have been able to assist
the Court one way or the other. But
if he could have given evidence favourable to the plaintiff it is
inconceivable that he should
not have been called”.
In the case of
Elgin Fireclays
Ltd. v Webb
1947 (4) SA 744
(A)
at 749 – 750
Watermeyer C J said the
following:
“
Counsel for
the applicant relied upon the fact that the shepherd was not called
to give evidence, and, from respondent’s omission
to call him
as a witness, asked the Court to draw the inference that his evidence
was in some way unfavourable to the respondent.
With regard to this
request, it is true that if a party fails to place the evidence of a
witness, who is available and able to
elucidate the facts, before the
trial Court, this failure leads naturally to the inference that he
fears that such evidence will
expose facts unfavourable to him. See
Wigmore
(secs. 285
and 286.) But the inference is only a proper one if the evidence is
available and if it would elucidate the facts”.
However, in
Munster Estates
(Pty) Ltd.v Killarney Hills (Pty) Ltd.
1979 (1) SA 621
(A)
at 624 D – F
Wessels J A in commenting
upon the decision in Elgin, had the following to say:
“
In my
opinion, however, it is to be doubted whether WATERMEYER C J intended
laying down a general and inflexible rule to be applied
without more
in every case where a party fails to call as his witness one ‘who
is available and able to elucidate the facts’.
Whether the
inference, that the party failed to call such a person as a witness
because he ‘fears that such evidence will
expose facts
unfavourable to him’,
should
be drawn
could depend upon the facts peculiar to the case where the question
arises. It was pointed out in
Werbranchek
v
L
K Jacobs & Co. Ltd
.
1948 (4) SA 671
(A) at 682 that it might appear that the person
concerned was equally available to both parties, and that the
inference could then
be drawn against both parties. VAN DEN HEEVER J
A also stated:
‘
After
all, plaintiff was entitled to rest his case upon evidence which he
considered adequate to
discharge the
onus
which lay upon him’
[38] In my view the
following factors are relevant in deciding whether to draw such an
inference.
[38.1] The Sheriff in
disposing of the property at a sale in execution does not act as the
agent of anybody but as an executive
of the law
Schoerie N O v
Syfrets Bank Ltd. & others
1997 (1) SA 764
(DCLD) at 773 E
When an immovable
property is sold by the Sheriff in terms of Rule 46
“he
becomes a party to the contract
suo nomine
and he is bound to
perform his obligations thereunder, which includes the giving of
transfer of the property to the purchaser, which
when effected is
considered done as validly and as effectually as if he were the owner
of the property”
.
Schoerie at pg 773 J –
774 B
[38.2] It is self-evident
therefore that the parties to the agreement were the Sheriff and the
first respondent. It seems patently
obvious that his evidence would
elucidate the issue as to whether he contracted with the first
respondent in his personal capacity,
or on behalf of the second
respondent. His evidence could have been decisive in resolving the
present dispute.
[38.3] The Sheriff should
have been able to elucidate the differences between the three sale
agreements and should also have been
able to say whether the power of
attorney was presented to him by the first respondent at the sale.
[39] On the particular
facts of this case I am satisfied that because of the failure by the
first respondent to call the Sheriff,
who was available and able to
elucidate the facts, an inference should be drawn that the first
respondent
“fears that such evidence will expose facts
unfavourable to him”
, with regard to the
completion and conclusion of the two copies of the agreement, being
Annexure “K” (the Sheriff’s
copy) and the copy
appearing at pages 77 – 83 of Exhibit “A” (the
first respondent’s copy), as well as
the presence and
significance of the power of attorney.
[40] Although the Sheriff
was also available to the applicant to be called as a witness, but
did not do so, in my view a similar
inference should not be drawn
against the applicant for the following reasons. On the facts of the
present case, the applicant
was not present at the sale in execution
and has no direct evidence as to whether the first respondent
concluded the sale in his
personal capacity, or acting on behalf of
the second respondent. As opposed to this the first respondent knows
exactly what transpired
at the sale. Should the applicant have called
the Sheriff the applicant would not have been able to discredit the
Sheriff as a
witness and would not have been able to cross-examine
him.
[41] Consequently,
whether the respondents have discharged the
onus
resting upon them of proving on a balance of
probabilities that the first respondent purchased the property on
behalf of the second
respondent at the sale in execution and
consequently did not have the legal right to sell the property, must
be determined not
only by considering the shortcomings in the
evidence of the first respondent, together with the provisions of the
three agreements
of sale, as well as the power of attorney and the
statement by the first respondent to Shewbaran three days after the
sale, that
the second respondent had purchased the property, but also
the adverse inference to be drawn by virtue of the failure of the
first
respondent to call the Sheriff as a witness.
[42] This enquiry does
not require an assessment of the applicant’s evidence because
his evidence can have no bearing upon
the central issue of the
capacity in which the first respondent bought the property at the
sale in execution. Consequently, the
fact that I was not impressed by
his demeanour in the witness box, as he appeared uncomfortable and
continually dropped his voice
to the extent that he was inaudible and
directly contradicted himself as to whether he offered the first
respondent R100,000.00
more for the sale to go through
Record pg 71 lines 12
– 14
Record pg 78 lines 4 –
7
can have no bearing upon
this central issue. The fact that he has lied concerning whether he
offered the first respondent R100,000.00
more for the sale to go
through, is not of relevance in deciding the central issue.
[43] The issue is whether
the first respondent when he bought the property did so intending to
act as the agent of the second respondent
or personally. The enquiry
is whether the first respondent has misrepresented his state of mind
in this regard. The presence of
the power of attorney is not
decisive, because in the light of the first respondent’s
untruthfulness concerning the extent
to which the second respondent
was involved in the business of speculating in the buying and selling
of properties, and his untruthfulness
concerning the interest that
the second respondent had in the property, I am satisfied that he has
not told the truth when he said
he had not seen the property before
he bought it, and that he bought it on behalf of the second
respondent. The inference is irresistible
that if and to the extent,
that he may have used second respondent’s name as a purchaser
at the sale in execution, this was
simply a convenience for tax
purposes as and when he wished to rely upon her description as a
purchaser, and was never intended
to limit and define his status as
the purchaser. In addition, the Sheriff was not called when his
evidence could have been expected
to elucidate the presence and
significance of the power of attorney. As regards the agreement of
sale, Annexure “K”
to the application papers, Annexure
“BS1” to the
application papers and
pages 77 – 83 of Exhibit “A”, when the
untruthfulness of the first respondent is considered,
together with
the absence of any evidence by the Sheriff to explain the
contradictions between these documents, as well as the
fact that the
only copy of the agreement which has been in the possession of an
independent third party, since the sale, reflects
the first
respondent in his own handwriting as the buyer, I am satisfied that
the agreements when considered as a whole, do not
provide reliable
evidence in support of the first respondent’s contention that
he purchased the property on behalf of the
second respondent. The
statement by the first respondent to Shewbaran that the second
respondent was the purchaser of the property
at the sale in
execution, is directly contradicted by his conduct thereafter in
allowing the property to be marketed and in signing
the agreement as
the seller, which he sought to explain by a further lie, namely that
he had made a mistake as to the identity
of the property.
[44] When all of the
above is considered I am satisfied that the
respondents have failed
to discharge the
onus o
f proving on a balance of
probabilities, that the first respondent bought the property at the
sale in execution on behalf of the
second respondent, and not
personally and that the first respondent consequently had no legal
right to sell the property to the
applicant.
[45] In the result the
rule nisi
issued by Mokgohloa J on 01 December 2011 falls to
be confirmed. At the hearing I directed that the evidence be
transcribed and
I was advised by Counsel that the parties were agreed
that the costs incurred would be shared equally, but that I should
make an
order in favour of the successful party, directing that such
costs may be recovered from the unsuccessful party.
[46] In addition to
confirming the rule I deem it necessary to refer this matter to SARS
for the tax affairs of both the first and
second respondents to be
investigated, particularly with regard to the conduct of the first
respondent in buying immovable properties
on behalf of the second
respondent, for re-sale, apparently for the purposes of reducing the
tax payable by the first respondent.
I grant the following
order
The rule is confirmed.
In addition to the costs
order forming part of (a), the respondents are ordered to pay the
applicant’s share of the costs
incurred in transcribing the
record.
A copy of the
application papers, a transcript of the evidence led, as well as
this Judgment are referred to SARS for the tax
affairs of the first
and second respondents to be investigated, particularly with regard
to the conduct of the first respondent
in buying immovable
properties on behalf of the second respondent, for re-sale, with the
object of reducing the tax payable by
the first respondent.
____________
SWAIN J
Appearances /…
Appearances
For the Applicant
: Mr. D.B. Joubert
Instructed by
: Randles Incorporated Pietermaritzburg
For the Respondent
: Mr. A. J. Troskie S C
Instructed
by
: Mohamed Khan & Associates
C/o
Sergie Brimiah & Associates
Date
of Hearing
: 28 August 2012
Date of Filing of
Judgment
: 10 October 2012