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[2008] ZAWCHC 88
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Pabst v Pabst and Another (4007/2008) [2008] ZAWCHC 88 (24 October 2008)
IN
THE HIGH COURT OF SOUTH AFRICA (CAPE OF GOOD HOPE PROVINCIAL
DIVISIONS
CASE NO
:
4007/2008
DATE
: 24
OCTOBER 2008
In
the matter between:
DR
JUTTA PABST
APPLICANT
and
DR
GUNTER PABST
1
st
RESPONDENT
THE
REGISTRAR OF DEEDS.
CAPE
TOWN
2
nd
RESPONDENT
JUDGMENT
NGEWU.
A J
Applicant
had brought an application on an urgent basis in which he sought an
order in the following terms: interdicting and restraining
the first
respondent from alienating the 20 immovable property, situated 9
Avon Drive, Constantia, Western Cape, referred to
herein as the
property, pending the finalisation of an action to be instituted for
the setting aside of the transfer of the property
into the name of
first respondent.
I
must mention that there are two respondents, Dr Gunter Pabst and the
Registrar of Deeds. For purposes of this application, relief
was
sought against both. The only relief pertaining to the second
respondent was paragraph 1.2 of the application, which read
as
follows, directing the second respondent to enter the caveat
against the title deed of the
property
in the Deeds Office in the following terms:-
"This
property is currently subject to proceedings in which Jutta Pabst is
claiming as against Gunter Pabst an order interdicting
and
restraining Gunter Pabst from alienating and encumbering the
property situated 9 Avon Drive, Constantia, Western Cape, pending
finalisation of an action to be instituted for the setting aside of
the transfer of the property into the name of Gunter Pabst;
or
alternatively for an order directing that the property be
re-transferred to Jutta Pabst."
An
order was asked for as an alternative to the prayer 1 of the notice
of application.
1.3 of the
notice of application said:-
"Granting
the applicant such further and alternative relief as this Honourable
Court may deem fit."
1.4
Directing
applicant to institute the action contemplated in prayer 2 above
within 20 court days from the date upon which the
order sought in
prayers 2 and 3 above are granted.
1.5
Directing
first respondent to pay costs of this application."
The
following became common cause. The parties that are applicant and
first respondent were married in Germany on 30 July 1982.
In July
1990 they relocated to South Africa. On 7 June 1991, applicant
conferred to first respondent a general power of attorney
to deal
with all her assets. In 1995 applicant became the registered owner
of immovable property, being 9 Avon Drive, Constantia,
Western Cape,
the property now subject of dispute, whose current value is now
seven million rand. The parties were separated
in 1999 or 2000 in
Germany. First respondent relocated to South Africa. They
ultimately got divorced in Germany on 25 April
2001.
In
contemplation of the divorce, on 13 June 2000 the parties entered
into a contract, which was recorded in German. The two
translations of those contracts were tendered, one by the 25
applicant and one by the respondent. The preamble to the copy
tendered by the applicant read as follows:-
âJP
and GP, referring to Jutta Pabst and Gunter Pabst respectively, are
dividing the family assets in the context of the divorce
of their
marriage. The following immovable assets that are situated in
South Africa are the sole property of Jutta Pabst
or the property
of a legal entity in which Jutta Pabst has shares."
With
specific reference to the property now in dispute, the preamble
provided thus:-
"9
Avon Drive, Constantia, being erf 8477. JP the
sole
owner, the immovable property being rented
out
until the end of August 2000. The immovable
property is
unencumbered as far as the (indistinct)
concerned, but the
acquisition was financed by
means of a private loan valued at
one million
rands."
Paragraph 1
of the contract provided that;-
"JP
and GP agree that GP has been the beneficial owner of the
immovable property since 20 June 2000.
This includes the
right to use and the right to sell the property for his own account.
JP granted a general power of attorney
to GP on 7 June 1991
enabling GP to perform all transactions relating to
the assignment of the beneficial
property to GP. GP declares that
she is not revoking this general power of attorney. GP is obliged
only to make use of the
general power of attorney beyond the
immovable property after having obtained JP's previous consent.
GP paid an
amount of 900 000 German marks to JP as compensation
for transfer of the beneficial property, which is hereby confirmed
by JP.
GP assumes no obligations for repayment of the loan."
The only
differences in the translated versions of the contract supplied by
the first respondent in regard to that of the applicant
was the
clause:-
"The
right to use and to alienate for own account",
instead
of:-
"The
right to use and right to sell the property for his own account",
and
also;-
"To
perform all transactions in connection with the allocation of
ownership of GP"
instead
of:-
â
To
perform all transactions relating to assignment
of
the beneficial property to GPâ
Applicant
does not dispute that she was paid the amount of 900 000 German
marks, and that she, I mean in the first respondent,
took over
obligation to repay the loan.
Applicant
premises her claim on the fact that she was the registered and
beneficial owner of the property. In February 2003 she
revoked the
general power of attorney she conferred on first respondent. Despite
such revocation, first respondent facilitated
transfer of the
property in his name during August to October 2007. She has
instituted an action for an order directing that
property be
re-transferred into her own name. Alternatively that the transfer be
set aside on basis that the power of attorney
first respondent used
in effecting such transfer had been properly cancelled.
Applicant
further maintains that the property was intended to be secured for
the benefit of the one child that the parties had
during their
marriage.
First
respondent thus abused the power of attorney to deprive the
applicant of the property, and furthermore he negotiated with
the
Deeds Office to facilitate transfer. Therefore the doctrine of
unclean hands would disentitle the respondent to 10 any defence
in
the main proceedings applicant had instituted. First respondent's
conduct was in flagrant breach of the understanding and
agreement
between the parties that he would be entitled to be only the
commercial owner of the property.
First
respondent disputes that the applicant is entitled to re-transfer of
the property into her own name, or to an order setting
aside the
transfer, or the interdict that she now seeks. The acquired rights
of the so-called economical beneficial owner referred
to in the
agreements to first respondent, which rights included the right to
use and alienate for own account. The power of attorney
first
respondent used was declared not to be revocable. First respondent
undertook to obtain applicant's consent if he wanted
to use the
general power of attorney for purposes other than in respect of the
property.
He
paid the applicant 900 000 German marks in consideration for the
grant of such rights, and further took over the obligation
to
repay the loan taken out to acquire the property. For the above
reason, first respondent became the real owner of the property
and
acquired full rights in the property, that is to use alienate or
sell same for his own account. He further stated that
he engaged
the services of a conveyancer who duly facilitated transfer of the
property. He did nothing wrong as applicant
sought to portray.
In
their papers applicant referred to a series of sham agreements that
she concluded with the respondent with a view to facilitate
administration of the respondent's affairs. She, however, does not
regard the deed of settlement she 15 provided as a sham
agreement.
Applicant
further does not dispute that she received 900 000 German marks as
consideration of a transfer of the rights he had
in the property to
the first respondent. She does not even come up with a
counter-suggestion as to why she received that substantial
amount
from the first respondent. What remains clear, from her own
translation of the agreement of 13 July 2000 is that she transferred
the rights she had in the property to the first respondent. The
contract that she entered into with the respondent is fully binding,
and she cannot simply renege therefrom unilaterally
What further
complicates issues for her is the fact that she exchanged her rights
in return for the 900 000 German marks, 5 a
fact that she failed to
divulge in her founding affidavit and even to deal with in her
reply. She does not even dispute that
first respondent continued
repaying the loan pursuant to the agreement.
The
first respondent discharged his obligations in terms of the
contract. The rights of ownership he now claims are intricately
linked to the binding agreement which conferred to him such rights.
Whatever rights applicant had In the property were eroded
through
the sale or exchange of rights in return for the money.
The
agreement the parties had was in writing and was duly signed by both
parties. It remains valid and binding and cannot just
be revoked at
a whim. When one signs a contract, 20 one is taken to be bound by
the ordinary meaning and effect of the words
which appears over
one's signature. The signature signifies that the writing to which
it pertains accords with the intention
of the signatory,
In the case
of
White
v Barrett and Another
.
1964(2) SA 732 (NPD), it was stated that:-
"The
question whether a power of attorney or authority of an agent
howsoever conferred is irrevocable depends, it
seems, on an
interpretation of the transaction to which the principal has entered
with the agent and an application of the general
principles of law
relating to that transaction. The principal may have bound himself
to the agent in terms expressed or implied,
which obliged him
contractually not to revoke the agent's authority, save on paying of
liability in damages."
The power of
attorney was an agreement between the 15 applicant and the
respondent, which was clearly intended to be irrevocable.
Applicant
could not just withdraw same unilaterally without having had first
respondent's agreement or consent thereon. Respondent
has a right to
ignore such withdrawal.
The
applicant has approached the Court by way of an interim interdict.
For her to succeed, she had to satisfy the following four
requirements, which had to exist conjunctively with one another.
They are a
prima
facie
right,
a well-grounded 25 apprehension of irreparable harm if the
interim relief is not granted and the ultimate relief is
eventually
granted, that the balance of convenience favours the granting of an
interim interdict, and that the applicant has
no other satisfactory
remedy. The duty therefore lies on the Court so to assess the 5
applicant's evidence as to establish the
above requirements, if they
have been met.
In
the case of
(Indistinct)
Investment (Pty) Limited and South African National Roads Agency
Limited and Others
.
2001(3)
10 SA 244
(N), the principles governing interim relief
were stated thus:-
â
The
principles established by the cases where an interim interdict
is sought where there are conflicting (indistinct)
are as
follows:-
1. The
requirements for a final interdict are well- established and
require the applicant to show a clear right and whether an
intention
of irreparable harm or injury in the absence of any other ordinary
remedy. If an applicant can prove the above requirements,
he will
also obviously be entitled to an interim interdict.
2.
Where
the applicant cannot show a clear right, then he has to show a
right which, though
prima
facie
established,
is open to some doubt. In that event, the applicant will have to
show that the balance of convenience favours
him. The test for
the grant of the relief involves a consideration of the prospect of
success and the balance of convenience.
The stronger the prospects
of success, the less the need for such balance to favour the
applicant. The weaker the prospect
of success, the greater the
need for the balance of convenience to favour him. By balance of
convenience
is meant the prejudice to the applicant if the interdict be refused,
weighed against the prejudice to the respondent
if it be granted.
3. Even if
there are material conflicts of fact, the Court will still grant
interim relief. The proper approach is to take the
facts as set out
by the applicant together with any facts set out by the respondent
which applicant cannot dispute and to consider
whether, having had
regard to the inherent probabilities, the applicant
should, on those facts, obtain final relief
at the trial. The
facts set out by the respondent in contradiction should then be
considered. If serious doubt is shown
on the case of the
applicant, he should not succeed in obtaining temporary relief, for
his right
prima
facie
established
may only be open to some doubt.
In
addition, see also
Plascon
Evans Paints (Pty) Limited v Van Riebeeck Paints (Pty) Limited
.
1984(3) SA 623 (A),
In
the present case it was argued on behalf of the applicant that the
mere fact that she was once registered as an economic owner
of the
property was sufficient to establish a
prima
facie
right.
However, the first respondent and also the applicant have provided
copies of the agreement relating to the division of
their assets on
divorce. The wording thereof is clear and unambiguous that the
applicant transferred her rights and so the property
to the
respondent. This clouds whatever
prima
facie
right
the applicant may have had in respect of the properly. In my
judgment this alone excludes the possibility of the applicant
succeeding in the main action.
That
she failed to divulge in her founding affidavit that she received
the amount in return for the transfer of the rights and
that she is
not able to state why she received the money, and also that she
never tendered the amount back to the respondent
or even applies for
revocation of the contract she 5 entered into with the respondent,
leaves one with an inevitable conclusion
that she is the one
approaching the Court with unclean hands. Applicant has failed to
establish her right that the first respondent
invaded.
Applicant
did not place sufficient evidence before the Court to show existence
of her right, even though open to some doubt,
and thus failed to
discharge the onus resting on her. The Court deems it unnecessary to
canvass the further requirements of an
interdict as enlisted above.
In
the result, the Court makes the following order:-
The
application is
DISMISSED
WITH COSTS
.
NGEWU,
A J