Full Gospel Church of God in Southern Africa and Others v Living Waters Community Worship Centre and Others (: 13531 /20 06) [2024] ZAWCHC 198 (1 July 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 13531/2006

In the matter between:

THE FULL GOSPEL CHURCH OF GOD IN
SOUTHERN AFRICA First Applicant

THE REGIONAL COUNCIL FOR THE CAPE PENINSULA
OF THE FULL GOSPEL CHURCH OF GOD IN
SOUTHERN AFRICA Second Applicant

THE EXECUTIVE COUNCIL OF THE FULL
GOSPEL CHURCH OF GOD IN
SOUTHERN AFRICA Third Applicant

and

LIVING WATERS COMMUNITY WORSHIP CENTRE First Respondent

RAYMOND PAUL OLCKERS Second
Respondent

CITY OF GRACE LIVING WATERS NON-PROFIT
ORGANISATION Third Respondent
(Registration Number: 2008/029283/08)

NEW DIRECTION GRACE CHURCH NON-PROFIT
ORGANISATION Fourth Respondent
(Registration Number: 2015/172406/08)

______________________________________________________________________
JUDGMENT DELIVERED ELECTRONICALLY ON 1 JULY 2024
______________________________________________________________________
MANGCU-LOCKWOOD, J

A. INTRODUCTION & BACKGROUND

[1] The applicants seek the return of property described as Erf 1 [...], Bellville ( “the
property”), as well as ejectment of the respondent s from the property , plus certain
ancillary relief. The application is opposed only by first to third respondents, who are
hereafter referred to as “the respondents”. Although the fourth respondent was leasing
the property when the proceedings were launched, it had vacated it by the time the
matter was heard, and did not participate in these proceedings , and a court order of 10
August 2022 confirmed that the matter would not proceed against it.

[2] The property that is a t the centre of these proceedings is a church building
situated in Belhar, Cape Town. It is common cause that the land on which the church
building exists was acquired in 1987 by the Belhar Assembly of the Full Gospel Church,
which was then a local chapter of the applicants (“the Belhar Assembly” ), led by the
second respondent as its pastor. In April 2000 members of the Belhar Assembly decided
to leave the Full Gospel Church, and to change the local church name to Living Waters
Community Worship Centre, Belhar - the first respondent.

[3] By means of an affidavit deposed by the se cond respondent dated 30 August
2000, the Registrar of Deeds was requested to endorse the name change in terms of
section 93(1) of the Deeds Registries Act 47 of 1937. The affidavit stated that the
second respondent was authorized to make that request pursuant to a resolution taken
by the Local Church Council of the first respondent. Further, that the name-change from
Belhar Assembly to the new name “will not result in the transfer of any right s”. The
name-change was indeed endorsed on the title deed by the Registrar of Deeds on 30
August 2000.

[4] The applicants viewed the respondents’ application to the Registrar of Deeds as
fraudulent because , contrary to the second respondents’ affirmation under oath , the
application in terms of section 93(1) of the Deeds Registries Act necessarily involved a
transfer of rights, and especially the ownership of the property to the new entity, the first
respondent, and the application was made without consulting the Full Gosp el Church.
This belief was based on the provisions of their constitution, to which I return at the
appropriate time.

[5] As a result, between August 2000 and 2006, negotiations ensued between the
parties, effectively regarding the ownership rights of the property. It is common cause
that the parties were loath to litigate. It is also common cause that during the same
period, there were other local congregations which broke away from the Full Gospel
Church, and which also similarly transferred church properties onto their new names,
but which subsequently returned the properties pursuant to court orders obtained by the
applicants. One such matter was litigated together with this one until it was settled.

[6] On 7 December 2006 the applicant s issued summons, seeking return of the
property and certain ancillary relief , citing as respondents the present first and second
respondents as well as the Registrar of Deeds. The action was defended by the first
and second respondents, who were legally represented by an attorneys’ firm as well as
junior and senior counsel. The respondents successfully defended the matter, based on
a special plea of prescription which was uphel d in 2009 . However, the court a quo ’s
decision was later overturned by a full bench on appeal in 2011, and was referred back
to the trial court. After many delays and numerous interlocutory processes between the
parties, the matter was set down for pre -trial conference on 15 October 2013 before the
now retired Yekiso J . On the eve of the pre -trial conference, the parties concluded an
agreement of settlement (“the settlement agreement ”), which was made an order of
court by Yekiso J on 15 October 2013.

[7] In broad terms, the settlement agreement recorded that the first and second
respondents acknowledged that the name change was unlawful; that the applicants
were the owners of the property; that the Registrar of Deeds was authorized and
ordered to rescind a nd cancel the name change and to restore the title deed to reflect
what it previously reflected pr ior to the name change. It also provided for sale of the
property by the second applicant to the first respondent, the terms of which were set out
in the main agreement and an agreement of sale ( annexure A thereto) and a draft
mortgage bond (annexure B thereto ). It also provided for the first and second
respondents to pay for the applicants’ litigation costs in the appeal in respect of which
they had successful ly overturned the trial court decision ( “the appeal costs” ). Pursuant
to the terms of the settlement order o f 15 October 2013 , the Registrar of Deeds
amended the title deed on 17 August 2015, with an endorsement cancelling the name
change which had been effected on 30 August 2000.1

[8] Much of what transpired after conclusion of the settlement agreement is in
dispute, including whether the applicants validly cancelled the agreement on 25
September 2014 . It is common cause, however, that after 25 September 2014 the
parties continued to negotiate to resolve the issues between them, until 7 February
2019, when the applicants gave notice of intention to launch these proceedings.

1 It is common cause that the deeds endorsement erroneously referred to a court order of 15 October
2015 instead of 2013, which was the correct year of the settlement agreement and court order.

B. THE APPLICANTS’ CASE

[9] According to the applicants , they instructed a conveyancer to attend to the
transfer of the property into the name of the first respondent as well as simultaneous
registration of the mortgage bond, as envisaged in the settlement agreement. The y
state that on 8 January 2014 the conveyancer issued an invoice to the first respondent
for conveyancing costs in the amount of R51 670 -00, and for rates and tax clearance in
the amount of R158 523 -99, but t he amounts had not been paid by 9 April 2014 ,
resulting in two notices of breach of the settlement agreement , dated 9 April 2014 and
25 June 2014 . When the notices of breach were not complied with , the settlement
agreement was cancelled by letter dated 25 September 2014.

[10] The applicants’ case is that the second applicant is the owner of the property, as
reflected on the title deed . They also state that, since the respondents breached the
terms of the settlement agreement, the y [applicants] were entitled to cancel it , which
they did. The consequence is that there is no legal reason for the respondents to retain
possession, let alone, claim ownership of the property.

[11] Further, any right claimed by respondents for transfer of the property became
extinctively prescribed by 15 October 2016 , which was three years from the date of
signing the settlement agreement ; alternatively, by 9 January 2017, which was three
years from the first date that the conveyance rs demanded payment in terms of the
agreement from the respondents . In any event, no ne w agreement was entered into
which would have interrupted prescription.

C. THE RESPONDENTS’ CASE

[12] The respondents raised two points in limine in the answering affidavit. First, they
state that the current third and fourth respondents, who have been joined as parties to
this dispute, were not parties to the original dispute that resulted in the settlement
agreement, and accordingly the applicant s were required to seek leave to join them to
these proceedings. Secondly, they state that, since the settlement agreement was made
an order of court, the applicants were required to seek confirmation of cancellation by
the court before cancelling the agreement.

[13] The terms of the settlement agreement, including the sale agreement and the
draft mortgage bond, are admitted in the answering affidavit. The respondents explain
that, pursuant to the settlement agreement they agreed to pay a monthly amount of
R10, 000 -00 towards the purchase price of the property, which they did until a total
amount of R500 000 -00 was paid. That was until 2017 when the second respondent
discovered that other congregations in a similar position to the first respondent were no
longer bound to make payments to the applicants. In any ev ent, the respondents’
financial position had deteriorated , and they could not afford to make any more
payments, and they stopped making the payments.

[14] The respondents deny receiving any demand for payment of the conveyancing
costs dated 8 January 2014 , nor any of the breach notices dated 9 April 2014 and 25
June 2014, nor the cancellation of the settlement agreement dated 25 September 2014.
They deny that they breached any terms of the settlement agreement . Further, the
mandate of the respondents’ attorney , Mr Julian Apollos, who represented them from
the inception of the action proceedings, was terminated not long after the conclusion of
the settlement agreement.

[15] Furthermore, the respondents state that, until the papers in this matter were
issued, they were in regular contact with the leadership of the applicants and at no point
was there ever demand made for vacation of the property, or demand for any
outstanding payments until February 2019 . It was only during 2018 that they
discovered, for the first time, that numerous letters had been sent to them demanding
compliance with the settlement agreement.

[16] As a result , the second respondent authored a letter dated 9 October 2018
proposing a payment arrangement consisting of monthly payments of R10 000-00 for a
period of 70 months, with the monthly amount to be reviewed after 12 months, and after
70 months the outstanding balance would be paid in a lump sum. In respect of this
proposal, the respondents seek a declaratory order confirming: (a) that the parties
concluded a new agreement , with which they are bound to comply; (b) the respondent
(it is not clear which one) is to obtain a bond in the sum of R1 million, which is the
purchase price in terms of the new agreement; (c) the purchaser is to pay the costs of
transfer of the immovable property which forms the subject of this litigation; (d) the
parties must sign all the necessary documents to enable transfer thereof , failing which
the sheriff is authorized to do so.

[17] The respondents also argue in their papers that, if applicants persist with
cancellation of the settlement agreement, they are in turn entitled to restitution of the
monthly amounts paid, which amounted to approximately R500 000.

D. DISPUTES OF FACT

[18] As a result of the disputes of facts between the parties , my brother Henney J,
who previously dealt with this matter, granted an order dated 10 August 2022 (“the
referral order”) in which the following issues were referred for oral evidence:

“1.1 The quantum, date of each payment, and to whom it was paid, of the
payments totaling the amount of R500 000.00, allegedly made by the Fi rst
Respondent to the Applicants.

1.2 The designation for allocation, if any, by the First Respondent in respect of
each payment totaling the amount of R500 000.00, allegedly made by the First
Respondents to the Applicants.

1.3 The actual allocation by the Applicants, of each payment totaling R500
000.00, allegedly made by the First Respondent to the Applicants.

1.4 The payments due and the indebtedness of the First Respondent in terms
of the Agreement of Sale and draft mortgage bond annexed thereto, from date of
signature thereof on 14 October 2013, to date of cancellation thereof on 25
September 2014.

1.5 Should it be foun d that the Agreement of Sale and draft mortgage bond
annexed thereto has not validly been cancelled, the payments due and the
indebtedness of the First Respondent in terms of the Agreement of Sale and draft
mortgage bond annexed thereto, from date of signa ture thereof on 14 October
2013, to date of the hearing of the Application.

1.6 The payments due and the indebtedness of the First and Second
Respondents in terms of the Settlement Agreement, relating to the contribution
towards the legal costs of the App licants in the amount of R250 000 -00, from
date of signature thereof on 14 October 2013, to date of the hearing of the
Application.

1.7 Whether the First Respondent was in breach of the Agreement of Sale
and draft mortgage bond annexed thereto, on the da te of the first breach notice
on 9 April 2014.

1.8 Whether the First Respondent was in breach of the Agreement of Sale
and draft mortgage bond annexed thereto, on the date of the second breach
notice on 25 June 2014.

1.9 Whether the First Respondent was in breach of the Agreement of Sale
and draft mortgage bond annexed thereto, on the date of the cancellation thereof
on 25 September 2014.

1.10 Whether the First Respondent and Second Respondent were in breach of
the Settlement Agreement rel ating to the contribution towards the legal costs of
the Applicants in the amount of R250 000-00, at any time.

1.11 Whether the payments in the amount of R500 000 -00 allegedly made by
the First and Second Respondents, were made in respect of and towards:

1.11.1 the R250 000 -00 contribution to costs in terms of the Settlement
Agreement; and

1.11.2 the monthly instalments and interest;
in terms of the Agreement of Sale and draft mortgage bond annexed
thereto.

1.12 Whether any payment made by the First Respondent was made in respect
of and towards:

1.12.1 the City of Cape Town account; and

1.12.2 the Conveyancer’s costs;
as demanded in the breach notices of 9 April 2014 and 25 June 2014.

1.13 Whether the Applicants had a duty to have allocated any payments made
by the First Respondent in respect of and towards:

1.13.1 the City of Cape Town account; and

1.13.2 the Conveyancer’s costs;

as demanded in the breach notices of 9 April 2014 and 25 June 2014.

1.14 Whether the Applicants had in fact allocat ed any payments made by the
First Respondent in respect of and towards:

1.14.1 the City of Cape Town account; and

1.14.2 the Conveyancer’s costs;

as demanded in the breach notices of 9 April 2014 and 25 June 2014.

1.15 Whether the First and Second Respon dents had designated any
payments made by the First Respondent in respect of and towards:

1.15.1 the City of Cape Town account; and

1.15.2 The Conveyancer’s costs;

as demanded in the breach notices of 9 April 2014 and 25 June 2014.

1.16 Whether the Applicants were entitled to cancel the Agreement of Sale on
25 September 2014.

1.17 Whether the Agreement of Sale was validly cancelled by the Applicants on
25 September 2014.

1.18 Whether or not the First Respondent was still in lawful occupation of the
property after the cancellation of the Agreement of Sale on 25 September 2014.

1.19 Whether or not the First, Third and Fourth Respondents were still in lawful
occupation of the property at the time this Application was launched on 2 April
2019.

1.20 Whether or not the First and Third Respondents are still in lawful
occupation of the property at the time of the hearing of the Application.

1.21 In the event that it is found that the Agreement of Sale was not validly
cancelled, whether the First Respondent is entitled to still claim occupation of the
property in terms of the Agreement of Sale.

1.22 In the event that it is found that the Agreement of Sale was not validly
cancelled, whether any claim by the First Respondent to occupy the property in
terms of the Agreement of Sale, has become prescribed.

1.23 In the event that it is found that the Agreement of Sale was not validly
cancelled, whether any claim by the First Respondent to claim transfer of the
property in terms of the Agreement of Sale, has become prescribed.”

[19] Two witnesses were called to give evidence on these issues, namely Mr
Johannes Jacobus Badenhorst, the attorney who has represented applicants since
before the action proceedings of 2006 were instituted, and the second respondent on
behalf of the respondents.

Evidence of Johannes Jacobus Badenhorst

[20] Mr. Badenhorst testified that the applicants were loath to litigate, and especially
against the respondents, and wanted to afford the second respondent opportunity to
continue with his ministry. This is why it took so long to launch the 2006 action
proceedings and to launch these proceedings.

[21] According to Badenhorst , it was the erstwhile legal representative of the
respondents, Apollos, who had approached him and pleaded for settlement of the action
proceedings following the appeal decision. Badenhorst was in fact the author of the
settlement agreement, with input from Apollos. The settlement agreement was signed at
the chambers of the applicants’ present counsel, Mr Du P lessis, after protracted
negotiations, where the second respondent was present together with Apollos and the
respondents’ senior and junior counsel on the one hand, and Badenhorst and Mr Du
Plessis, on the other . Badenhorst signed the agreement on behalf of the applicants,
while the second respondent signed on behalf of the first and second respondents. He
testified that the date on which the settlement agreement was signed, 14 October 2013,
was the day of, or day before the set down date for pre -trial of the matter, and there
were a number of interlocutory applications between the parties, and the effect of the
settlement agreement was to settle all the legal proceedings between the m. After the
signing thereof, he and his counsel had attended to court to make it an order of court.

[22] Badenhorst testified that the second respondent was v isibly pleased and relieved
when the settlement agreement was concluded, and all those present hailed it as a
significantly favourable agreement towards the respondents. In his view, it was a
‘bargain of a lifetime’ for the respondents because it was obtained after attachment of
the respondents’ movable property pursuant to the costs in the appeal which had been
taxed by that stage; and according to him, the respondents knew they could not win the
action after having lost the appeal; and the second respondent would not be losing his
church or congregation; and the respondents were to purchase the property at a quarter
of its price, which was at that stage valued at R4 636 3 380 by the City of Cape Town,
funded by the applicants.

[23] He explained the terms of the settlement agreement in detail. In effect, it
provided for payment of two debts, namely the taxation costs of the appeal and the
purchase price of the property. The respondents agreed to pay an amount of
R250,000.00 towards the appeal costs in equal monthly instalments of R10,000.00.
Annexure A contains an acceleration clause in terms of which failure to pay within the
required time would result in the full balance being payable together with interest at
15.5%, retrospectively calculated from 1 October 2013.

[24] As regards t he sale of the property, the second applicant in effect, stepped into
the shoes of a financial institution and agreed to fund the purchase through a mortgage
bond which was payable over a period of 10 years . To this end, a draft mortgage bond
was attached as annexure B , and was to be registered once the transfer costs were
paid by the respondents . The purchase price of the property was R2.5 million, payable
in monthly installments of R20,000.00 with effect from 1 December 2013, and the
instalments were to increase to R30 ,000.00 per month after two years, and thereafter
the full amount was payable. The sale agreement also contains an acceleration clause ,
but which required notice first.

[25] In the event of default, the agreement provided the applicants with two options,
namely to declare cancellation or to claim payment of the full balance due. By bringing
this application, the applicants opted to declare a cancellation. The settlement
agreement also provided that any amendment thereof could only be in writing.

[26] Following the settlement agreement, Badenhorst instructed a conveyancer to
proceed with registering the transfer of the property to the respondents. In terms of the
agreement, and specifically Annexure B, the respondents were liable for the transfer
costs, includin g disbursements thereon. The conveyancer issued an invoice for
payment of R51,670.00 for his fees. In addition, the City of Cape Town produced an
invoice of R158,523.00 before it could issue a rates clearance certificate. On the basis
of these invoices, Badenhorst sent a letter to Apollos dated 9 April 2014, bringing the
outstanding payments to the attention of Apollos and his client , the second respondent .
The registered letter dated 9 April 2014 was not collected at the post office and was
returned to Badenhorst and he had accordingly sent it by e -mail to Apollos on 13 May
2014.

[27] On 14 May 2014, Apollos responded by e -mail contained in the bundle and
reported that he had consulted with the second respondent on that morning and had
impressed on him the urgency of remedying the breach. The e -mail concluded by
stating: “I am sure client will remedy the situation” . However, the breach was no t
remedied. On 25 June 2014 Badenhorst addressed another letter to Apol los for the
respondents to remedy the breach, and when that did not result in the breach being
cured, he sent the letter of cancellation on 25 September 2014. He does not recall
receiving a written response from Apollos during that period, but he testifie d that he had
telephonic conversations with him on almost a daily basis – at least once a day. It would
be left to Badenhorst to record the contents of their telephonic discussions in letters
immediately following the discussions. He referred in this regar d to the letter of 25
September 2014, in which he had recorded that Apollos had confirmed receipt of both
letters dated 9 April 2014 and 25 June 2014. According to Badenhorst, Apollos was the
attorney of record representing the respondents, and gave no indication otherwise. The
last interaction he had with Apollos in this matter was in July 2015.

[28] By reference to his letters contained in the record, Badenhorst gave evidence
regarding his interactions with Apollos. In this respect, he testified that, upon receiving
the letter of 25 September 2014, Apollos telephonically begged him for more time to
submit further proposals to the applicants. However, nothing was received from him by
8 October 2014 , which el icited a letter on that day from Badenhorst demanding a
response. On 30 November 2014 Badenhorst had a discussion with Apollos who
confirmed that he had spoken to the second respondent , and who, in turn was in direct
communication with the leadership of th e applicants, in line with the ongoing
background negotiations between the clients. On 1 December 2014 the respondents
were again afforded until 5 December 2014 to forward proposals and the opportunity
was repeated in January 2015. However, nothing was fo rthcoming from the
respondents.

[29] Badenhorst vehemently disputed the allegation that Apollos was no longer
representing the respondents after the settlement agreement. He referred to the e-mails
from Apollos in which he stated that he had consulted with the second respodent “this
morning” dated May 2014 and July 2014. He stated that, even by middle of 2018
Apollos was still the attorney of record on behalf of the respondents and was on daily
telephonic contact with him, sometimes twice a day , pleading for s ettlement of the
matter and assuring Badenhorst that his clients were “busy getting the money together”.
He also referred to his letter of 25 September 2014 in which he recorded a telephonic
discussion between the two of them, where Apollos made mention of a consultation he
had held with the second respondent. Another letter he referred to in this regard is dated
1 December 2014, and it again confirmed discussions between he and Apollos.

[30] It was put to him that the only written response in the record from Apollos was the
e-mail dated 14 May 2014. Badenhorst could not confirm this , but explained that often
Apollos would respond telephonically and it would be left to him (Badenhorst) to confirm
their discussions in writing. He never asked Apollos why he did not put things in writing.
He explained that the two of them had come a long way in this matter and the
respondents had repeatedly failed to comply with timeframes, and so he had become
accustomed to being the one who would always confirm discus sions in writing. In any
event, Badenhorst stated that the address of Apollos was the domicilium address in
terms of the settlement agreement . And to date, there has never been a notice of
withdrawal by Apollos.

[31] In cross examination, h e was challenged to explain why he addressed a letter
directly to the second respondent on 15 November 2018 despite his evidence that he
believed the respondents were still represented by Apollos. He initially admitted that, if
the letter was not also cop ied to Apollos, this would have been an oversight on his part.
However, it later transpired during his evidence that Apollos was copied in the letter of
15 November 2018, and that the letter was a response to a letter received directly from
the second resp ondent on 9 October 2018. He explained that in effect, the letter of 15
November 2014 showed that Apollos was directed to the correspondence of 9 October
2018, and that Badenhorst believed that Apollos was still the attorney representing the
respondents. He also referred to his other correspondence immediately before then,
dated 19 July 2018, August 2018, in which Apollos was copied.

[32] Badenhorst also vehemently disputed the second respondent’s claim that he
never received a copy of the settlement agreement. He explained that , after signature
by the parties , photocopies were made and every person in the room obtained a copy,
including t he second respondent. Badenhorst had personally handed a copy of the
settlement agreement to each person in the room, including the second respondent. He
pointed out that subsequently, the monthly payment installments were made into his
trust account almos t immediately after the settlement agreement, from 11 November
2013, without anyone requesting his banking details. This shows that the second
respondent was aware of terms of the settlement agreement because his trust banking
details were contained therein.

[33] Badenhorst prepared a schedule , for purposes of his evidence, setting out the
payments made by the respondents and how they were allocated by the applicants. He
testified that he had structured the schedule in such a way as to be the most beneficial
towards the respondents . In other words that , according to him the respondents were
liable for more than was reflected in the schedule. He explained that he never received
any instruction from Apollos or the second respondent explaining what the respondents
were payments were for specifically, or how to allocate them. However, from the regular
monthly amounts received of R10,000.00, it was clear to him , upon applying the terms
of the settlement agreement, that the payments were towards the appeal costs. He
explained that the respondents never paid any installment of R20,000.00 , which would
have qualified as payment towards the purchase pri ce. He confirmed during cross
examination that the only exceptions to the monthly payments of R10,000.00 were a
payment of R80,000.00 on 8 December 2014, and a payment of R50,000.00 on 2
February 2015.

[34] His belief that the monthly payments of R10,000.00 w ere towards the appeal
costs was also confirmed by the commencement date of the payments, which was 11
November 2013. In terms of the agreement, the first payment towards the appeal costs
was due from 1 October 2013, whilst the purchase price payments were due from 1
December 2013. He also referred in this regard to an e -mail of 6 January 2016 in which
the second respondent requested waiver of “our court fees in terms of our agreement
made in October of 2012 (sic) please”. According to Badenhorst, this shows that even in
the mind of the second respondent, the payments were towards the appeal costs.

[35] According to the schedule of payments prepared by Badenhorst, the full amount
payable towards the appeal costs was only covered on 8 June 2015 , amounting to
R248 879.00 . He had accounted to the head office of the applicants at the time
regarding the payments, and there is no longer money is lying in his trust account in
regard in this matter . As at 8 June 2015 , an amount of R11,879,84 was in credit and it
was the first payment allocated towards the purchase price of the property, and that was
on 2 July 2015. The payments received were allocated towards interest before
allocation to the capital amount. The respondents continued paying monthly
installments mostly in the amount of R10,000.00, although they were sporadic, until 5
June 2017, which is when the last payment was received from the respondents.

[36] By the date of cancellation of the agreement in September 2014, no payment
had been made towards the purchase price of the property. However, in line with the
applicants’ stance of affording grace to the respondents, the agreement was not
cancelled on that additional bas is. At the time, the priority for the applicants was the
registration of the transfer, hoping that the purchase price payments could be
regularized at a later stage. However, the failure to pay for the conveyancing costs
meant that no transfer of the property could be effected. In fact, by September 2014, the
appeal costs were due and owing in terms of the acceleration clause, and only an
amount of R110,000.00 had been paid, and although the applicants were entitled to also
execute and attach the responden ts’ property in that regard , they instead chose to
allocate the monies paid towards that debts owed in terms of the settlement agreement.

[37] He confirmed during cross examination that no transfer documents were sent to
the respondents because they had not p aid the conveyancer’s invoices. The
conveyancing costs were due before transfer could be attended to by the conveyancer ,
in line with the usual conveyancing practices. There was furthermore no lodgment date
obtained as yet because that would require the transfer documents to be signed, which
could not be done because the conveyancing costs had not been paid. He explained
that there is a very short window between lodgment and transfer . It was put to him
during cross examination that, Annexure A of the settlement agreement implied that
conveyancing costs could not be demanded until a lodgment date was obtained.
Badenhorst disputed this, referring to the provisions of the settlement agreement which,
according to him did not require that the lodgment date be secured, but merely that it be
anticipated by the conveyancer.

[38] It was put to him that the conveyancer could not have r eceived the City’s rates
and clearance account when he issued his own invoice dated 8 January 2014, because
the municipal account is dated 12 March 2014. Badenhorst stated that the municipal
account expressly states that it was valid for one month between 12 March 2014 and 16
April 2014. This meant there was a very small window to lodge and register the transfer
document. This is why the first breach notice was sent on 9 April 2014. He confirmed
that no lodgment date had been obtained when the conveyanc er issued his invoice,
however he stated that it was anticipated because of the short window.

[39] He also explained that b y April 2014 the respondents had paid an amount of
R50,000.00, which did not cover the two invoices from the conveyancer . By September
2014 the respondents had paid an amount of R110,000.00 which was still not enough
for the conveyancing costs which included the m unicipal bill. In any event, according to
the settlement agreement , the monthly payments were not for payment of the
conveyancing costs . He testified that there was simply no way in which the monthly
payments by respondents could be construed as payments towards the br each notice,
and Apollos never told him that the payments were towards the breach notices . To date,
no payment has ever been made towards the conveyancer’s costs and rates clearance.

[40] According to his calculations, as at 31 January 2024, the respondents owe d an
amount of R5,312,100.00 in respect of interest calculated in terms of the settlement
agreement. The respondents also owe value of occupation of the property which is in
effect damages that the applicants are entitled to claim. However, the applicants have
not laid any legal claim for any of those amounts.

[41] The property remains vacant since the fourth respondent left , and the second
respondent has a new congregation with a new building near the property. The
applicants are concerned about the safety and security of the building because there
are no security guards appointed to it. The rates bill has since been reduced
substantially, although he did not have details of when those payments were made
since they were made directly to the City.

[42] He testified that, u ntil the answering affidavit was delivered, the respondents
never demand ed repayment of the amount of approximately R500,000.00 that they
have paid and which has been allocated as illustrated above. According to him, there
would be no basis for such a demand in any event, because interest had already
accumulated in respect of both the payments towards the purchase price and the
taxation costs. In any event, such a claim would have prescribed because the last
payment received from the respondents was over six and a half years ago. Further, the
respondents have never laid a claim for transfer of the property into their names since
the Registrar of Deeds rectified the title deed in compliance with the court order . He
opined that they would have to tender payment of the purchase price and interest in
order to have such transfer take place.

[43] Save for what I have specifically mentioned above, the evidence of Mr.
Badenhorst was not challenged.

Evidence of Mr Raymond Paul Olckers (second respondent)

[44] The second respondent testified that he was present when the settlement
agreement was concluded. His erstwhile attorney, Apollos, had called him on that same
morning of its signature and informed him that the applicants were ready to settle the
litigation relating to the ownership of the property. The negotiation discussions started
with me ntion of an amount of R4.7 million which he thought was ridiculous given the
location of the property in Belhar. Later that afternoon they settled on an amount of R2.5
million, which he agreed to pay at R10,000-00 per month.

[45] He testified that the current terms of the settlement agreement , reflected in the
record, are not what he agreed to. He would never agree that the property does not
belong to the respondents, and everyone who knows him knows that he would never
agree to something like that. He also ne ver agreed to the provision in which the
respondents acknowledged that the name change was irregular, and in which the
Registrar of Deeds was requested to rescind it. Furthermore, no mention was made of
transfer documentation in the discussions. It was during the oral evidence of
Badenhorst that he heard , for the first time, that the applicants had offered the
respondents a mortgage bond.

[46] Although he admits that he signed and affixed his initials to the settlement
agreement, including Annexures “A” and “B”, he states that he “never signed for all that
other rubbish that’s on there” . In this regard, he referred to a digital application he had
heard of, called ‘robo-signing’, in terms of which a person can sign a document and
alterations can be made by someone else at a later stage, suggesting that this is what
happened in this case. He had later discovered all these new provision in early 2019
when he attended at the Deeds Office with a Ms Fischer, a lawyer congregant who was
assisting him at the time and who is now deceased , and obtained a copy of the
settlement agreement . He stated that he was not furnished with a copy of the
agreement on the day that he had signed it.

[47] He could not say specifically who had told him that he was required to make the
payment of R2.5 million, which he said was to be made up of monthly payments of
R10,000-00, but stated that it arose from the discussions although he also stated that it
was because the agreement told him so . According to his understanding, the payments
were to be made over some time, and no specific period was agreed upon. As regards
the payments towards transfer of the property, his evidence in chief was that he cannot
remember whether he was told that he would be required to pay for transfer, or when
those payments were due. He denied that he agreed for the respondents to pay for
appeal legal costs in the amount of R250,000-00.

[48] He testified that he terminated the mandate of Apollos shortly after signing the
settlement agreement, and never communicated with him after the settlement
agreement was entered into . He could not give an exact date of when this occurred .
However, during cross examination he stated that he never terminated it verbally or in
written form, but simply stopped responding to Apollos’ messages. It was on hearing the
triumph in the voice of the applicants’ counsel when the latter telephonically informed
his clients of the settlement agreement, that the second respondent felt that he had
been ‘thrown to the wolves’ by Apollos , and also felt that he had been lured into the
settlement discussions by him on that day. However, he had not pursued the issue any
further by investigating the matter further, or laying a complaint against Apollos.

[49] After the settlement agreement, he made payments with effect from 11
November 2013. In cross examination h e was asked to explain how and where he
obtained the bank details into which he was supposed to pay, which were the bank
details of Badenhorst’s trust account , and he stated that he obtained those details from
Mr Apollos although he could not give details of when this would have been. It was put
to him that if he obtained the bank details from Mr Apollos, this could have only been
after entering into the settlement agreement, which meant that he was still in contact
after the signing thereof. At this point h e stated that he could have obtained the bank
details from Pastor Le Fleur, although he gave no detail in this regard.

[50] He confirmed that on 8 December 2014 he made a payment of R80,000 -00,
which was a contribution from the sale of his own house. Again, in February 2015 he
made a payment of R50,000 -00. He testified that he m ade all these payments towards
the property. No one ever told him that the payments were to be allocated towards
appeal legal costs. The monthly payments of R10,000 -00 were stopped because of the
effects of COVID-19 upon his congregation. However, during cross examination he was
confronted with the fact that the last payment made towards the settlement agreement
was on 5 June 2017, long before COVID -19, and he could not provide an answer. He
confirmed that the property has been vacant since 2019.

[51] After termination of the mandate of Apollos, he confirmed receiving a letter from
Badenhorst although he could not remember which one it was. He could not remember
receiving the letters of cancellation regarding non -compliance with the settlement
agreement, and by then he was no longer in contact with Apollos and did not receive
any such notification from him.

[52] He referred at many times to the situation of Pastor Raymond Le Fleur, whose
congregation similarly left the applicants only to return after a settlement. Although he
admitted that the history of Le Fleur was different, the applicants had written off his
congregation’s debt, and when he discovered this, he penned an email dated 6 January
2016 to the leadership of the applicants , asking for the same grace. He admitted during
cross examination that the other congregations which seceded from the applicants did
not take the property of the church with them and that the respondents in this case are
the only ones who did so.

[53] As regards his email of 6 January 2016, h e could not explain in cross
examination why he referred to the settlement agreement as “an amicable settlement
[entered into] in good faith” in that email, whilst he disputed the terms of the settlement
in his oral evidence. In the same e -mail, he requested the applicants to consider
“waiving our court fees in terms of our agreement made in October of [2013] ”. It was put
to him that the reference to court fees means he understood that the agreement
includes settlement of legal costs for the failed appeal. He disputed this, stating that he
was referring to the R2.5 million portion of the settlement.

[54] He received a response from the then Secretary General of the applicants , Dr
Petersen, dated 20 July 2017, stating that they would not accept any offer less than R1
million. It was this letter, dated 20 July 2017, that the second respondent referred to as
a new contract with the applicants. He also conceded, however, that no agreement was
ever reached with the applicants in that regard.

[55] The letter of 20 July 2017 referred to a financial statement received from the
applicants’ attorneys which stated that R250,000-00 had been deducted for court fees in
the failed appeal, after which an amount of R277,000 -00 was transfe rred to the
applicants towards the payment of the amount of R2.5 million. The second respondent
testified that he was not happy about the fact that the respondents’ payments had first
been allocated towards what he described as attorneys’ fees because, in his
understanding the payments were towards the R2.5 million. However , he did not take
any action or challenge that allocation after receiving the letter of 20 July 2017. He
testified that he has never had any discussion, whether written or telephonic, reg arding
how the payments made by the respondents were to be allocated.

[56] In response to the letter of 20 July 2017 , the second respondent addressed a
letter dated 09 October 2018 in which he made a proposal for a payment arrangement
consisting of monthly payments of R10,000 -00 for 70 months after which one lump
payment was to be made. The applicants responded by letter dated 15 November 2018,
rejecting the offer and informing the respondents that litigation was to ensue.

E. RELEVANT LAW

[57] A settlement agreement or compromise, whether embodied in a judgment of the
court or extra-judicial has the effect of being res judicata in that it embodies the final
settlement of disputed or uncertain rights or obligations by agreement and puts an end
to litigation between the parties. 2 As a result, litigation designed to enforce it will
generally relate to non -compliance with the settlement order, and not the merits of the
original underlying dispute.3

2 Road Accident Fund v Taylor and other matters (1136/2021; 113 7/2021; 1138/2021; 1139/2021;
1140/2021) [2023] ZASCA 64; 2023 (5) SA 147 (SCA) (8 May 2023) paras 36 – 39.
3 Eke v Parsons (CCT214/14) [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) (29
September 2015) para 32.

[58] When requested to do so, a court has the power to make a n agreement or part
thereof, an order of court , which means the settlement agreement becomes an
enforceable court order. Such an order will be interpreted like all court orders , in line
with the well-established test on the interpretation of court orders, which is the following:

“The starting point is to determine the manifest purpose of the order. In
interpreting a judgment or order, the court’s intention is to be ascertained
primarily from the language of the judgment or order in accordance with the usual
well-known rules relating to the interpretation of documents. As in the case of a
document, the judgment or order and the court’s reasons for giving it must be
read as a whole in order to ascertain its intention.”4

[59] In Engelbrecht5 the Supreme Court of Appeal (SCA) articulated the test for
interpreting court orders as follows:

“The intention of the parties is ascertained from the language used read in its
contextual setting and in the light of admissible evidence. There are three
classes of admissible evidence. Evidence of background facts is always
admissible. These facts, matters probably present in the mind of the parties when
they contracted, are part of the context and explain the ‘genesis of the
transaction’ or its ‘factual matrix’. Its aim is to put the Court ‘in the armchair of the
author(s)’ of the document. Evidence of ‘surrounding circumstances’ is
admissible only if a contextual interpretation fails to clear up an ambiguity or
uncertainty. Evidence of what passed between the parties during the negotiations
that preceded the conclusion of the agreement is admissible only in the case
where evidence of the surrounding circumstances does not provide ‘sufficient
certainty’.”

4 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others [2012] ZASCA
49; 2013 (2) SA 204 (SCA) (Finishing Touch 163) at para 13. See also Firestone South Africa (Pty) Ltd v
Genticuro AG 1977 (4) SA 298 (A). Eke v Parsons, para 29.
5 Engelbrecht and Another v Senwes Ltd [2006] ZASCA 138; 2007 (3) SA 29 (SCA) at paras 6-7.

[60] Whilst ordinarily the purpose served by a settlement order is that, in the event of
non-compliance, the party in whose favour it operates should be in a position to enforce
it through execution or contempt proceedings, the efficacy of settlement orders is not
limited to that. 6 The type of enforcement of a settlement order, which has been made
into a court order may take any form permitted by the nature of the order.7

[61] Since these are motion proceedings in which relief of a final nature is sought, the
legal principles set out in Plascon-Evans8 apply insofar as any disputes of fact may
arise in the papers. That is, that a final order can be granted only if the facts averred in
the applicant’s affidavits, which have been admitted by the respondents, together with
the facts alleged by the latter, justify such order. 9 It may be different if the respondents’
version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is
palpably i mplausible, far -fetched or so clearly untenable that the court is justified in
rejecting them merely on the papers. 10 The Court has to accept those facts averred by
applicant that were not disputed by respondents, and respondents’ version insofar as it
was plausible, tenable and credible. 11 It is otherwise undesirable to decide an
application upon affidavit where the material facts are in dispute 12, and a final interdict
may be granted on application if no bona fide dispute of fact exists.13

[62] Where there are factual disputes in oral evidence , the technique generally
employed by courts was summarised in Stellenbosch Farmers' Winery Group Ltd and
Another v Martell & Cie SA and Others14 as follows:


6 Eke v Parsons supra, para 24.
7 Ibid, para 31.
8 Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
9 Harmse Civil Procedure in the Supreme Court, B6.45.
10 Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA 1 (SCA);
National Director of Public Prosecutions v Zuma [2009] 2 All SA 243; 2009 (2) SA 279 (SCA).
11 Airports Company South Africa Soc Ltd v Airports Bookshops (Pty) Ltd t/a Exclusive Books [2016] 4 All
SA 665 (SCA).
12Harmse Civil Procedure in the Supreme Court, B6.45
13Plascon-Evans supra.
14 Stellenbosch Farmers' Winery Group Ltd and Another v Martell & Cie SA and Others 2003(1) SA 11
(SCA).
“To come to a conclusion on the disputed issues a court must make findings on
(a) the credibility of the various factual witnesses; (b) their reliability; and (c) the
probabilities. As to (a), the court’s finding on the credibility of a particular witness
will depend on its impression about the veracity o f the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order of importance,
such as (i) the witness’s candour and demeanour in the witness -box, (ii) his bias,
latent and blatant, (iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with established
fact or with his own extracurial statements or actions, (v) the probability or
improbability of particular aspects of his version, (vi) the calibre and c ogency of
his performance compared to that of other witnesses testifying about the same
incident or events. As to (b), a witness’s reliability will depend, apart from the
factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had
to experience or observe the event in question and (ii) the quality, integrity and
independence of his recall thereof. As to (c), this necessitates an analysis and
evaluation of the probability or improbability of each party’s version on each of
the disputed issues. In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the party burdened with the onus of
proof has succeeded in discharging it. The hard case, which will doubtless be the
rare one, occurs whe n a court’s credibility findings compel it in one direction and
its evaluation of the general probabilities in another. The more convincing the
former, the less convincing will be the latter. But when all factors are equipoised
probabilities prevail.”15

[63] A similar approach was articulated as follows in National Employers General
Insurance Co. Ltd v Jagers16:

“It seems to me, with respect, that in any civil case, as in any criminal case, the
onus can ordinarily only be discharged by adducing credible evidence to support

15 At para [5].
16 National Employers General Insurance Co Ltd v Jagers 1984 (4) SA 437 (ECD) 440 to 441.
the evidence of the party on whom the onus rests. In a civil case the onus is
obviously not as heavy as in a criminal case, but nevertheless where the onus
rests on the Plaintiff as in the present case, and where there are two mutually
destructive stories, he can only succeed if he satisfies the court on a
preponderance of probabilities that his version is true and accurate and therefore
acceptable, and that the other version advanced by the Defendant is therefore
false or mistaken and falls to be rejected. In deciding whether that evidence is
true or not the court will weigh up and test the Plaintiff’s allegations against the
general probabilities. The estimate of the credibility of a witness will therefore be
inextricably be bound up with a consideration of the probabilities of the case and
if the balance of probabilities favour the Plaintiff, then the court will accept his
version as being probably true. If, however, the probabilities are evenly balanced
in the sense that they do not favour the Plaintiff’s case any more than they do the
Defendant’s, the Plaintiff can only succeed if the court nevertheless believes him
and is satisfied that his evidence is true and that the Defendant’s version is
false.”

[64] When dealing with circumstant ial evidence the first rule applicable is that the
inference sought to be drawn must be consistent with all the proved facts. 17 If it is not,
then no inference can be drawn. Secondly, in civil cases the proved facts should be
such as to render the inferenc e sought to be drawn more probable than any other
reasonable inference. If they allow for another more or equally probable inference, the
inference sought to be drawn cannot prevail. 18 There is a distinction to be drawn
between inference and conjecture or speculation.19

[65] 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 feared that such evidence would expose facts unfavourable to him

17 R v Blom 1939 AD 188 at 202-203.
18 Macleod v Rens 1997 (3) SA 1039[E], and Zeffert, the South African Law of Guidance at p105.
19 See Probest Projects (Pty) Ltd v The Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund
(20761/2014) [2015] ZASCA 192 (30 November 2015) para [18] and the authorities cited there.
should be drawn could depend upon the facts peculiar to the case where the question
arises.20

[66] In Tshishonga v Minister of Justice and Constitutional Development
and Another21 , it was held that a failure to call a witness is reasonable in certain
circumstances, such as when the opposition fails to make out a prima facie case, but an
adverse inference must be drawn if a party fails to place evidence of a witness who is
available and able to elucidate the facts as this failure leads naturally to the inference
that he fears that such evidence will expose facts unfavourable to him or even damage
his case.

[67] As regards the relief of a rei vindicatio, an owner need do no more than allege
and prove that (s)he is the owner. 22 Since one of the incidents of ownership is a right to
possession of the thing, a party who establishes ownership is not required to prove that
the other party’s possession is unlaw ful. That onus falls on the other party, who must
establish their right to retain possession.

F. DISCUSSION

The points in limine

[68] The first point in limine was effectively dealt with in the postponement order of 10
August 2022, which included the following:

“3. The matter will proceed against the First and Third Respondent[s].


20 Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979(1) SA 621 AD.
21 Tshishonga v Minister of Justice and Constitutional Development and Another [2007] 4 BLLR
327 (LC); 2007 (4) SA 135 (LC) (26 December 2006).
22 Chetty v Naidoo 1974 (3) SA 12 (A) 20A - C. Dreyer and Another v AXZS Industries (Pty) Ltd (250 of
2004) [2005] ZASCA 88 / 2006 (3) All SA 219 (SCA).
4. The applicant does not seek any relief against the Fourth Respondent who
has vacated the property.”

[69] No challenge was brought against that order, which effectively clarified who the
participating parties henceforth would be. It is clear from the papers that the reason that
this order had to be made was because of the first point in limine raised by the
respondents. The co urt was accordingly satisfied that the third respondent was a
necessary party to these proceedings, and was properly cited as a party , even in the
absence of a separate , formal application for such joinder. That is in accordance with
the wide powers accorded to the High Court in terms of section 173 of the Constitution23
to regulate its processes.

[70] In any event, it is evident from the papers that the third and fourth respondents
were necessary parties which had a direct and substantial interest in the matter when
the application was launched. The relief sought, which includes ejectment from , and
vacation of , the property, necessarily involved the fourth respondent which was in
occupation of the property when the matter was launched although it has since vacated
the property. It is also common cause in the papers, though not entirely clear how, that
the third respondent “has superseded or replaced the first respondent [and that the first
respondent]may currently be dormant” . Apart from admitting this statement, t he
respondents did not provide any clarity regarding the current status of the first
respondent, save to state that the second respondent is a member of the third
respondent as well as an active preacher in the service of the first respondent, which
implies that the first respondent is still in existence. There was accordingly nothing
irregular about citing the third and fourth respondents to this application.

[71] The basis for the second point in limine is less clear, and the respondents did not
persist with this point in argument. In essence, the respondents state that the applicants’
failure to seek confirmation of cancellation of the agreement from the court renders th is
application defective and premature. This is because firstly, the settlement agreement

23 Constitution of the Republic of South Africa 108 of 1996 (“the Constitution”).
requires that any cancellation should be confirmed by the courts, and secondly because
“one party” - which I assume is a reference to the respondents - has complied with the
agreement.

[72] The respondents have provided no reference contained in the settlement
agreement for the alleged requirement for a party to first approach a court b efore
cancelling the agreement. I have found none. Instead, clause 8 of the annexure A to the
settlement agreement provides as follows:

“8. DEFAULT

Should the PURCHASER default with the due performance of any of its
obligations in terms of this agreement and persist in such default for a period of
30 [thirty] days after it will have received a notice calling upon it to remedy such
default, then notwithstanding any prior waiver, and without prejudice to any other
claim which the SELLER may have, either in terms of this agreement or at law, it
shall be entitled to either―

8.1 declare this agreement cancelled and to resume possession and
occupation of the property and to recover from the purchaser all damages it may
have suffered or sustained by reason of such default; or

8.2 claim and recover from the purchaser the full balance of the purchase
price then outstanding which shall be deemed to be due and owing.” (my
emphasis)

[73] Thus, in terms of the settlement agreement the applicants may declare the
agreement cancelled and resume possession and occupation of the property, and that
is the route that they have opted to pursue by launching these proceedings. That is
what the court order sanctioned as a remedy for non -compliance, based upon th e
agreement of the parties. It is correct that, s ince the settlement agreement was an
enforceable court order, the applicants had the option to enforce it by bringing contempt
proceedings or even execution, in which event they would have to approach the
court. However, the nature and terms of the court order are paramount in determining
what form its enforcement might take. 24 I was otherwise referred to no authority which
required the applicants to first approach the court for permission to cancel the
settlement agreement in the event of breach thereof. The available authority indicates
the opposite.25

[74] To require a party to first approach the court after agreeing in a settlement
regarding how to terminate the agreement would be contrary to the underlying purpose
and benefit of entering into a settlement agreement, which was articulated as follows in
Le Grange26:

“[T]he policy underlying the favouring of settlement has as its underlying
foundation the benefits it provides to the orderly and effective administration of
justice. It not only has the benefit to the litigants of avoiding a costly and
acrimonious trial, but it also serves to benefit the judicial administration by
reducing overcrowded court rolls, thereby decreasing the burden on the judicial
system. By disposing of cases without the need for a trial, the case load is
reduced. This gives the Co urt capacity to conserve its limited judicial resources
and allows it to function more smoothly and efficiently.”

[75] I also observe that the terms of the settlement agreement are not conditional
upon it being made into a court order for their operation. Clause 3 of the settlement
agreement provides as follows:

“ORDER OF COURT

24 Eke v Parsons (CCT214/14) [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) (29
September 2015) paras 29-31.
25 Sonia (Pty) Ltd v Wheeler 1958 (1) SA 555 (A) 560-1.
26 Ex Parte Le Grange and Another In re: Le Grange v Le Grange [2013] ECGHC 75 (Le Grange) at paras
36 and 38. In the South African Law Reports, this is reported as PL v YL 2013 (6) SA 28 (ECG).
3.1 The parties to this agreement agree and request that this agreement be
made an order of the above Honourable Court.

3.2 Any of the parties may, at their own cost and expense, apply to the above
Honourable Court to have this agreement so made an Order of t he above
Honourable Court.”

[76] The intention evinced by these provisions is that the parties were willing, and in
fact agreed, to make the settlement agreement an order of court. However, either party
was permitted in terms of clause 3.2 to approach the cou rt for such an order. There was
no requirement for both parties to approach the court at any particular time for such
endeavour. There was no timeframe put into place for such an endeavour. There was no
obligation to do so either. And as contemplated in these provisions, the court order itself
indicates that it was the applicants’ representatives27 who approached the court for such
an order.

[77] It is settled law that parties who enter into a settlement agreement are not
obliged to make it into a court order.28 A settlement, or more technically, a compromise,
whether embodied in a judgment of the court or extra -judicial has the effect of res
judicata, in that it is the final settlement of disputed or uncertain rights or obligations by
agreement.29 Clauses 3.1 and 3.2 above lend themselves to that intention. In other
words, what the parties envisaged was that the settlement agreement would be
effective, regardless of whether it was made into a court order.

[78] However, a court has the power to make a settlement agreement, or part thereof,
an order of court when requested to do so. One can think of a few reasons for such an
intention in this instance. One was to facilitate the rescission of the name change at the
Registrar of Deeds. Experience shows that that office will rarely implement the kind of

27 Referred to in the court order as “the legal representative for the plaintiffs”.
28 Road Accident Fund v Taylor and other matters (1136/2021; 1137/2021; 1138/2021; 1139/2021;
1140/2021) [2023] ZASCA 64; 2023 (5) SA 147 (SCA) (8 May 2023) para 37-39.
29 Cachalia v Harberer & Co 1905 TS 457. See RAF v Taylor, para 37.
action it was required to effect in this case without a court order. Another is the fact that,
in terms of clause 8.2 already referred to above, the applicants were entitled to institute
a claim and recover monies due and owing. It would be easier to obtain such relief on
the basis of a court order. The settlement agreement furthermore did not make any
reference for the parties to approach a court on the same papers in case of breach of
the agreement.

[79] Logically, all of this means the applicants were also entitled to cancel the
settlement agreement without court sanction.

The settlement agreement

[80] I now proceed to deal with the merits . Since the effect of the case law referred to
earlier is that, following the settlement agreement and court order, the rights of the
parties are to be determined in accordance therewith and not in terms of the original
litigation between them, it is necessa ry to first have regard to issues relating to the
settlement agreement.

[81] As is evident from the summary of the parties’ cases above, there was no dispute
in the papers that the parties entered into the settlement agreement, or regarding its
terms. That wa s until the second respondent’s oral evidence in which he disputed its
core provisions which deal with ownership, change of name, payment for taxed appeal
legal costs, transfer costs and the draft mortgage bond (annexure B).

[82] Because the terms of the sett lement agreement were not disputed in the papers,
the applicants did not have opportunity to deal with his denials in reply. It is trite that , if
an issue is not disputed in motion proceedings, it is deemed to be admitted. Where a
respondent fails to deny allegations contained in an applicant’s founding affidavit, the
court will accept the applicant's allegations as correct. 30 This is why the S upreme Court
of Appeal sounded a caution in Wightman31, as follows:

“…when he signs the answering affidavit, he commits himself to its contents,
inadequate as they may be, and will only in exceptional circumstances be
permitted to disavow them. There is t hus a serious duty imposed upon a legal
adviser who settles an answering affidavit to ascertain and engage with facts
which his client disputes and to reflect such disputes fully and accurately in the
answering affidavit. If that does not happen it should come as no surprise that the
court takes a robust view of the matter.”

[83] Another result of the fact that the terms of the settlement order were not placed in
dispute in the papers is that the issue was not referred for oral evidence in terms of the
order of 10 August 2022. Given the centrality of th is issue for the determination of this
matter, it is not unreasonable to conclude that, if the agreement was placed in dispute in
the papers, it too woul d have been referred for oral evidence. And although the issue
did arise in the oral evidence of the second respondent, it was not put to Badenhorst
during his evidence and accordingly he did not have opportunity to deal with it in his oral
evidence. That is another reason to not entertain the second respondent’s belated
denial of the terms of the settlement order. Doing so would result in extreme unfairness
to the applicants, not to mention the abuse to the administration of justice.

[84] Thus, although the second respondent's denial of the terms of the settlement
order pervaded much of his oral evidence, which I have set out in the summary of his
evidence, it is not an issue that I consider to be a genuine dispute of fact between the
parties wit hin the contemplation of Plascon Evans . It is otherwise clear from all the
evidence before the Court that the parties did indeed agree to all the terms contained in

30 See Erasmus D1-63 and authorities cited there.
31 Wightman t/a J W Construction v Headfour (Pty) Ltd and Another (66/2007) [2008] ZASCA 6; [2008] 2
All SA 512 (SCA); 2008 (3) SA 371 (SCA) (10 March 2008) para 13.

the settlement agreement, and that, as contemplated in the agreement it was thereafter
made a court order, pursuant to an application by the applicants’ legal representatives.

[85] The settlement agreement facilitated sale of the immovable property from the
applicants to the respondents through clause 2.3, the sale agreement (annexure “A”),
and a draft mortgage bond (annexure “B”). Clause 2.3 provides as follows:

“2.3 SALE OF THE IMMOVABLE PROPERTY

2.3.1 The [applicants], jointly and severally, insofar as may be needed or may
be required, hereby sell the immovable property to the First [respondent].

2.3.2 The terms and conditions of the sale of the immovable property and the
purchase price, payment terms and all other terms and conditions agreed to
between the parties will be set out in the Sale Agreement annexed hereto as
annex “A” and the draft First Mortgage Bond annexed hereto as annex “B”.”

[86] The sale agreement, annexure “A”, is headed “Sale of Property Agreement”, and
was an agreement between the second applicant as seller and the first respondent as
purchaser. The preamble noted that the se cond applicant is the registered owner of the
property and it wished to sell it to the first respondent. Clauses 3 and 4 set out the
purchase terms as follows:

“3. PURCHASE AND SALE

3.1 The seller hereby sells to the purchaser who hereby purchases the
property subject to the terms and conditions set out herein;

3.2 The purchase price of the property (the PURCHASE CONSIDERATION) is
the sum of R2 500 000 -00 (TWO MILLION FIVE HUNDRED THOUSAND
RAND).

4. PAYMENT

4.1 The payment of the purchase price of the property by the PURCHASER to
the SELLER shall be by way of payments as set out in and substantially in
accordance with the First Mortgage Bond annexed hereto as annex “[B]”, to be
registered simultaneously with the registration of TRANSFER.

4.2 The First Mortgage Bond shall be registered by the PURCHASER as
Mortgagor in favour of the SELLER as Mortgagee as set out in 4.1 above.”

[87] Annexure “B” was headed “Mortgage Bond” and described the first respondent
as “the mortgager” and the second applicant as “the mortgagee”. It further set out terms
providing for first respondent to be indebted to the second applicant in the sum of R2.5
million, which was said to be the purchase price of the property sold by the mortgagee
to the mortgager. It further provided for payment of the capital sum of R2.5 million, plus
accrued interest as follows:

“(a) monthly instalments of R20 000 -00 (TWENTY THOUSAND RAND) each,
the first of which shall be paid on the 10th day of December 2013 and subsequent
instalments on or before the 10 th day of each and every succeeding month
thereafter; and

(b) monthly instalments of R30 000 -00 (THIRTY THOUSAND RAND) each,
on the 10th day of December 2015 and subsequent instalments on or before the
10th day of each and every succeeding month thereafter; and

(c) one final payment equal to the full amount of capital and accrued interest
then still outstanding on 30th of November 2023.

The Mortgagor shall be entitled to pay larger instal ments than are provided for
herein or to anticipate the due date of any instalment or instalments or to pay the
full amount owing at any time. In the event of any one of the aforesaid
instalments not being paid on the due date thereof, then and in such eve nt the
full balance of capital and interest shall immediately become due and payable 10
(TEN) days after the Sellers shall have called upon the Purchaser in writing to
pay the instalment and it shall have failed to do so within the said period of ten
days provided that should be Sellers have despatched two such notices to the
Purchaser in the same calendar year and the Purchaser should thereafter again
fail to make any one payment on due date thereof then the full balance then still
outstanding shall become due and payable immediately and without notice.
Should the Mortgagor at any stage hereafter sell the property, then the full
amount of the purchase price and the accrued interest shall likewise immediately
and without notice become due and payable.”32

[88] Badenhorst testified that Annexure “B” was a draft mortgage bond, which would
have been registered once transfer costs were paid by the respondents. Indeed, the
document contained no date, stating that the date is “to be inserted”. Then, on the last
page where the Registrar of Deeds would normally stamp the document, no stamp or
signature from the Registrar of Deeds is contained.

[89] Although annexure B was a draft mortgage bond , its contents were incorporated
by reference to the settlement agreement, and immediately became binding. That much
is clear from firstly, clause 2.3.2 which provides that the “terms and conditions agreed to
between the parties will be set out in the Sale Agreement annexed hereto as annex “A”
and the draft First Mortgage Bond annexed hereto as annex “B”. ” Secondly, from clause
6 which provides as follows:

“6. FULL SETTLEMENT


32 Para a) at pages 2 -3 of annexure B.
The parties confirm that this agreement and Annexes “A” and “B” constitute and
contain the entire Agreement between them and that this Agreement is further in
full and final settlement of the Plaintiffs’ claims against the Defendants’ arising
from the acti on and as set out in the Plaintiffs’ particulars of claim and that the
parties will have no further claims against one another except as is set out in this
agreement.

7. ENTIRE AGREEMENT

This settlement and the annexes thereto constitute the entire agree ments
between the parties and any variation of consensual cancellation of this
agreement, (including this clause 7 and Annexes “A” and “B”), will only be valid if
reduced to writing and signed by all the parties hereto.”

The cancellation

[90] The settlement a greement included terms relating to payment for transfer costs
by the respondents. The relevant terms in that regard were as follows:

“6. TRANSFER

6.1 Transfer of the property into the name of the purchaser shall be given and
taken as soon as is reasonably possible after the –

6.1.1 fulfillment of any suspensive conditions, if applicable, referred to in this
agreement; and

6.1.2 payment by the purchaser of the costs referred to in clause 7 hereof;

6.2 Transfer shall be effected by the CONVEYANCERS.
…
6.5 Without derogating from 5.1 hereof [risk, benefit and occupation dates],
the SELLER and the PURCHASER, on demand from time to time, will pay to the
CONVEYANCERS their proportionate shares of the amounts required by the
local authority concerned for the issue of rates clearance certificates in order to
procure the transfer of the PROPERTY. Such proportionate shares will be
calculated according to the date which the CONVEYANCERS reasonably
determine as being the anticipated TRANSFER DATE...

7. COSTS AND TRANSFER

7.1 The PURCHASER shall bear and pay all of the costs payable in
accordance with the normal conveyancing practice, together with all and any
duties in relation to the transfer, payable on demand;

7.2 The transfer will be effected by J. J. Badenhorst & Associates Attorneys of
10 Bert Close, Helderkruin, Roodepoort, Tel: (011) 764 4745 at the cost of the
PURCHASER which costs will be payable by the purchaser on demand made by
the CONVEYANCERS, which demand may not be made unt il a reasonable time
before the date which the CONVEYANCERS reasonably determine as being the
anticipated LODGMENT DATE for the transfer taking into consideration
disbursements that have to be made.”

[91] The portions highlighted indicate that the respondents, as purchasers, were
required to pay for the transfer costs upon demand by the conveyancers. The
requirement for a purchaser to pay for transfer costs is not unusual. The second
respondent admitted this in his cross examination , and he knew this because he has
been involved in many purcha ses and sales of properties over the years. He also
admitted that the norm is for transfer costs to be paid before lodgment and the
registration date of a property. Therefore, to the extent that the respondents state that
they only expected to pay for transfer costs after full payment of the purchase price of
the property, or after registration, this would be against even the usual experience of the
second respondent. It would also be contrary to the provisions of the settlement
agreement, as set out above. In any event, he did not completely deny that the
respondents were required to pay the transfer costs in terms of the settlement
agreement. He put it no higher than to state that he cannot reme mber whether he was
told about it.

[92] The only challenge in this regard concerned whether that transfer costs were in
fact due given that no lodg ement date had been obtained by the conveyancer , which
was a requirement according to the respondents . This requires interpretation of the
applicable provisions. First, what is clear from clause 6.1 is that transfer of the property
into the name of the respondents could only be effected once they had paid the transfer
costs in terms of clause 7. Second, in terms of clause 7.1, read with 6.2, those costs
were payable on demand by the conveyancer. Third, the de mand by the conveyancer
could not be made until “a reasonable time before the date which the conveyancers
reasonably determine as being the anticipated lodgment date for the transfer taking into
consideration disbursements that have to be made”. In other words, the conveyancer
had to reasonably determine the anticipated date for lodgement, and within a
reasonable period before that, make the demand for payment. Thus, there are two
periods contemplated in this clause in respect of which the conveyancer was required to
make a reasonable determination. One is the reasonable time for making a demand for
payment, and the second is the reasonable time of an anticipated date for lodgement.

[93] What flows from that conclusion is that the conveyancer was afforded discr etion
to consider the two periods involved, but that such determination had to be reasonable.
Also clear from the wording of the clause is that the lodgement date would be
‘anticipated’ when the demand was made. The Cambridge dictionary defines anticipates
as follows: “to imagine or expect that something will happen; to take action in
preparation for something that you think will happen ”; whilst the Collins dictionary
explains that “[i]f you anticipate an event, you realize in advance that it may happen and
you are prepared for it”. Taking these definitions into account, I am of the view that there
was no requirement for the conveyancer to have obtained a definite date before making
a demand for payment . In any event, as I have already indicated, even the second
respondent did not deny Badenhorst’s evidence that, according to the usual
conveyancing practices a lodgment date can only be obtained after the signing of the
transfer documents, which in turn required that the conveyancing costs be paid. The
question rather is whether the conveyancer’s demands in this case, if they were made,
were issued taking into account those two reasonable periods.

[94] As it turns out, th is issue may be academic because t here is no proof in the
record that the two invoi ces that formed the basis for the demands and cancellation,
were sent by the conveyancer to the respondents at the time of their issue. T he two
invoices were for the conveyancer’s costs dated 8 January 2014 and the City’s account,
indicating a validity period between 12 March 2014 and 16 April 2014 . There is no proof
that the two were brought to the attention of the respondents at any time prior to 13 May
2014. No confirmatory affidavit was obtained from the conveyancer in this regard. In
fact, in the papers, the applicants introduced the invoices as annexures that were sent
with the first breach notice which was , in the end, only sent on 13 May 2014 . I do note
that, in his letter dated 9 April 2014 but only forwarded on 13 May 2014 , Badenhorst
alleged that the respondents had failed to pay the conveyanc ing costs. However, even
there, no proof was attached to show that the conveyancer’s invoice had previously
been sent to the respondents or that any demand had been made by the conveyancer
as contemplated in the settlement order.

[95] As for the rates clearance invoice from the City, it indicates that it was valid from
12 March 2014 until 16 April 2014, and Bade nhorst testified that this means it was
issued to the conveyancer on 12 March 2014. Again, there is no evidence that it was
sent to the respondents on any of the dates spanning its validity. Furthermore, although
Badenhorst’s breach notice was dated 9 Apri l 2014, his evidence was also that he did
not send it on that day because of instructions he had received from his clients. He
confirmed as much to Apollos in his e -mail of 14 May 2014. As a result, I am unable to
find that the respondents had been placed in mora with regard to the two invoices prior
to the date of 13 May 2014.

[96] By the date that the first breach notice was dispatched by Badenhorst of 13 May
2014, the City's invoice was no longer valid, having expired on 16 April 2014. I have not
been referred to any further invoice that was issued by the City or which formed the
basis for the notices of breach sent to the respondents . As a result, eve n if the
respondents had not settled the expired invoice by 13 May 2014, on the applicants’ own
version the validity period of the bill had expired. And the common cause evidence was
that the rates bill was eventually reduced substantially, by the responde nts, although it
is not clear when or to what amount. As a result, the applicants have not established the
basis on which they continued to demand payment of th e amount in that specific
invoice.

[97] That does not mean, however, that the respondents were no longer responsible
for payment of the conveyancing costs . It was a lways a requirement of the settlement
order that the respondents would pay for all for the conveyancing costs in order for
lodgment and thereafter, transfer to take place . The invoice for the conveyancer’s fees
had not expired and remained due for payment by the respondents so that transfer
could take place. There was accordingly lawful basis for the applicants to issue a notice
on 13 May 2024 for the respondents to comply with the terms of the settlement by
paying for conveyancing costs . Even if that notice was the first notification that came to
their attention, it constituted a demand for payment in terms of the settlement order,
which required remedy within 30 days.

[98] The respondents deny having received any breach notices from the applicants ,
or any notification thereof . They state that they had terminated the mandate of Apollos
not long after the conclusion of the settlement agreement and did not receive any
communication from him or from the applicants. They also state that they did not obtain
a copy of the settlement agreement, an issue I deal with later below.

Apollos’s mandate
[99] I now deal with the alleged termination of Apollos’s mandate. I preface this part of
the discussion by pointing out that, apart from the oral evidence in court, much of it is
based on correspondence exchanged between the two attorneys representing the
parties at the time, namely Badenhorst and Apollos, and although the former is still on
record and gave evidence , the latter is no longer involved and did not give evidence. I
consider the correspondence to be relevant and necessary corroboration of the events
at the time in question, and insofar as it constitutes hearsay evidence regarding Apollos,
I consider it admissible for determination of this aspect .33 In this regard, I take into
account the fact that Badenhorst gave detailed, undisputed evidence regarding all this
correspondence, which was penned by himself on the basis of his interactions with
Apollos at the time in question , another issue that was not disputed . Only the two
attorneys involved in the discussions could give evidence in this regard. It was also not
disputed that it was o ften left to Badenhorst to confirm the contents of his telephonic
discussions with Apollos. It is not unusual for attorneys to commit verbal discussions to
writing. He wrote the letters while he was still imbued in the events in question . I have
no reason to disregard that evidence.

[100] By contrast, the evidence of the second respondent was very vague regard ing
the circumstances under which he allegedly terminated the mandate of Apollos or when
this occurred. And unlike the applicants, the respondents did not seek to obtain the
evidence of Apollos which would have provided assistance on these issues , particularly
because th e specific issues involving the conclusion and implementation of the
settlement agreement and the termination of Apollos’ mandate would have been within
the combined specific knowledge of the second respondent and Apollos.34 Upon inquiry,
the counsel representing the respondents informed me in this regard that the second
respondent “no longer had a relationship with Apollos” . It is difficult to decipher exactly
what was meant by this statement from the bar. However, what is c lear is that no
attempt was made to contact him by, or on behalf of the respondents.


33 See section 3 of the Law of Evidence Amendment Act 45 of 1988.
34 See Tshishonga v Minister of Justice and Constitutional Development and Another.
[101] In terms of clause 4.1 o f the agreement, the address of Apollos was the
domicilium citandi et executandi for purposes of giving notice and serving legal process
upon the respondents. Any change thereto was required to be in writing in terms of
clause 4.2. Accordingly, apart from Badenhorst, Apollos is the only other person who
would be knowledgeable about these issues. I was informed that the applicants’ legal
representatives unsuccessfully tried to obtain the current contact details of Apollos, in
order for him to assist with this matter, and discovered that he is no longer registered as
a legal practitioner with the Legal Practice Council.

[102] Turning to the evidence, the record contains an e-mail from Apollos dated 14 May
2014 in response to Badenhorst’s notice of 13 May 2014, which stated as follows:

“I refer to your notice dated 9 April 2014 but received on 13 May 2014
…

I am sure that our client w ill remedy the situation timeously. In fact, I have
consulted with [the second respondent] this morning and impressed upon him
that this is a matter of extreme urgency and also as to the implications of not
meeting their obligations.

I will revert in the next week or so as to our further instructions.” (my emphasis)

[103] Badenhorst confirmed in his evidence that he did indeed receive the e -mail from
Apollos on 14 May 2014, and that the breach was not remedied as promised , which
resulted in him issuing a further breach notice on 25 June 2014 . I have already
summarized the evidence of Badenhorst regarding his regular interactions with Apollos
during the period between 13 May 2024 and 25 September 2014, when the applicants
state that they cancelled the agreement, whilst Apollos continued to represent the
respondents, seeking indulgences on their behalf. The second respondent’s evidence
was to simply dismiss this, stating that he was no longer in contact with Apollos by that
stage, though he provided no detail in this regard. My impression from his evidence was
that he did not want to talk about this issue, or any of his erstwhile legal representatives
for that matter.

[104] Similar allegations were made at paragraphs 60 to 65 of the founding affidavit as
those made in the oral evidence of Badenhorst . At paragraph 62, the founding affidavit
specifically quoted the contents of Apollos’ e -mail of 14 May 2014. In answer to those
paragraphs, the answering affidavit states as follows:

“AD paragraph 60 to 65

110.1 The [respondents] has no knowledge of the content of these paragraphs,
do not admit same and put the applicants to the proof thereof.

110.2 I can unfortunately not recall any discussions with Apollos as we
terminated his mandate not long after settlement.

110.3 In any event we had made about 50 payments totaling about R500,000
towards the purchase of the property and in accordance with the settlem ent
agreement.” (my ephasis)

[105] The oral evidence of the second respondent did not provide any more clarity than
the highlighted portion above relating specifically to what discussions if any were held
with Apollos, and when, and remained veiled in the mystery of the alleged termination of
Apollos’s mandate, which I consider below. But as regards Apollos’ email of 14 May
2014, the second respondent offered no plausible answer or explanation , and instead
persisted in his denial of the applicants’ right to dema nd any conveyancing fees despite
the clear terms of the settlement agreement, which I have already dealt with. And as
indicated in the portion of the answering affidavit quoted above, the respondents’
highwater mark in this regard is that the second respon dent cannot recall whether
Apollos informed him of the first breach notice, thus not denying it. I accordingly find that
the contents of the first breach notice came to the attention of the second respondent on
14 May 2014.

[106] During cross examination, it transpired that the second respondent never issued
an oral or written termination of mandate to Apollos. He simply stopped returning his
messages though he could not give details as to when this was . Given that he stated in
the answering affidavit and in his evidence in chief that he had terminated Apollos’
mandate, this contradiction remained unexplained. But it does support the possibility
that he was informed of the breach by Apollos on 14 May 2014 and simply chose to
ignore the issue. That is a strong probability which is supported by Apollos’s email of
that date.

[107] The evidence shows that Apollos did continue to communicate and interact with
the second respondent after the signing of the settlement agreement. He was not ex -
communicated immediately after the signing of the agreement, as alleged in the
answering affidavit and in chief by the second respondent. After all, the second
respondent’s own evidence is that Apollos provided him with amongst other things,
Badenhorst’s banking details for purposes of making payments in terms of the
settlement agreement, which could have only been after the signing thereof.

[108] There are also other indications that Apollos continued to represent the
respondents beyond the settlement agreement and was in contact with the second
respondent. Apart from Apollos’ e-mail of 14 May 2014, was the second breach notice of
25 June 2014 in which Badenhorst stated as follows:

“1. Our telephonic discussion towards the end of May 2014 concerning our
letter of 9 April 2014 which was unfortunately only sent out on 13 May 2014,
refer.

2. In view of the fact that your offices are the chosen domicilium citandi et
executandi of the Purchaser and your acknowledgement of receipt of the letter of
demand, you are hereby informed that should the breaches not be rectified by 10
July 2014, which is a date in excess of 30 days calculated from the date of
receipt of the letter, my client intends cancelling the agreement of sale and
claiming possession of the property…” (my emphasis)

[109] This letter confirms that, apart from the e-mail response of Apollos dated 1 4 May
2014, there was further communication between the two attorneys, in the form of a
telephonic discussion towards the end of May 2014, and this was regarding the first
breach notice. The letter of 25 June 2014 also served to confirm that on 14 May 2014
Apollos had acknowledged receipt of the breach notice. All of this shows that the first
breach notice was within the knowledge of Apollos. Importantly, the letter also served to
confirm that the domicilium address for the respondents ha d not changed. Surely, if the
mandate of Apollos was terminated by then, this was the opportunity for him to indicate
as much in response to that letter, whether in written form or via the phone.

[110] The next letter from Badenhorst was the cancellation letter dated 25 September
2014. It was very detailed and attached a copy of the settlement agreement, the court
order and the two breach notices , and was sent by registered mail to the respondents
and Apollos. Paragraphs 3 to 6 thereof are instructive:

“3. I confirm that during the numerous telephonic discussions between
[Badenhorst] and your Apollos after the breach notices/demands , Apollos had
acknowledged that he had received these breach notice demand letters and was
still awaiting instructions from the Purchaser.

4. I further refer to the recent telephonic discussion between the writer and
Mr. Apollos, some two weeks ago, when he undertook to take urgent instructions
from the purchaser and to revert to me urgently.

5. I confirm that on 25 September 2014 the writer was informed by Mr.
Apollos that he was still awaiting instructions from the Purchaser, to enable him
to respond to the Seller's breach notices/demands referred to above.

“6. [Apollos] informed me that he had in fact gone as far as to request the
friend of the [second respondent] Pastor [Le Fleur], on Monday 22 September
2014, to request the second respondent to communicate with Mr. Apollos
urgently, but to date has not heard from him yet.”

[111] This letter confirms that as at that da te, A pollos still considered himself as the
representative of the respondents. At paragraph 3 of the letter there was specific
mention made of discussions held between the two attorneys after Apollos’ receipt of
the breach ‘notices demands’. In other words, after the second breach notice of 25 June
2014, there was yet another discussion between the two attorneys. Badenhorst recalled
in his oral evidence that, upon receipt of this cancellation letter, Apollos had
telephonically contacted him and begged for more time to submit further proposals on
behalf of the respondents.

[112] I do observe that t he letter of 25 September 2014 suggests that the second
respondent was ignoring the attempts of Apollos to obtain instructions from him. This is
indicated by the r epeated promises attributed to Apollos, that he was awaiting
instructions from his clients , effectively since the last discussion after receipt of the
second breach notice . It is also indicated by paragraph 6 of the letter in which it is
recorded that Apollos has gone as far as to seek the intervention of a third party in
communicating with the second respondent. I am accordingly willing to accept that
sometime between 25 June 2014 and 25 September 2014 - it is not clear when exactly -
the communication between Apollos and the second respondent broke down.
Throughout that time, it appears that Apollos was not informed that his mandate was
terminated. Hence his repeated promises to revert with instructions to no avail, and his
recorded attem pts to seek the intervention of a third party to communicate with the
second respondent on 22 September 2014. This accords with the second respondent’s
evidence that he simply ignored Apollos’ messages.

[113] But that was not the end of Apollos’ involvement in the matter. In a letter dated 8
October 2014 , Badenhorst recorded events following the cancellation letter of 25
September 2014, as follows:

“1. Our letter of 25 September 2014 cancelling the agreement b etween our
respective clients and subsequent telephonic discussion, after receipt of the letter
and after a consultation with your client refers.

2. I confirm that you agreed to let me have a written proposal in this regard.

3. I am still awaiting same.” (My emphasis)

[114] The significance of the highlighted portion is the recordal that Apollos had held a
consultation with the second respondent after receiving the cancellation letter of 25
September 2014, and thereafter promised to forward a w ritten proposal, which had not
been received by 8 October 2014. This can only mean that, sometime between 25
September 2014 and 8 October 2014, Apollos managed to bring the fact of the
cancellation of the agreement to the attention of the second respondent . There would
be no other reason for a consultation after rec eiving the letter of 25 Septemb er 2014.
Still further, there would be no basis , other than the instructions of his client, to promise
to revert with a written proposal. This also accords with the evidence of Badenhorst that
after receipt of the letter Apollos had pleaded for more time on behalf of his client s.
Then, in a subsequent letter dated 1 December 2014 Badenhorst stated as follows:

“1. Previous correspondence and our discussion yesterday refers .” (my
emphasis)

[115] This indicates that Apollos was still in the picture as at 30 November 2014.
Furthermore, it was not disputed during the evidence Badenhorst that he was in regular
contact with Apollos until approximately the middle of July 2018 , with the latter seeking
indulgences on behalf of the respondents. Very rarely will a practicing attorney persist in
such conduct, without instructions. In fact, it would amount to misconduct for a lega l
practitioner to enter into , and continue with negotiations on behalf of someone without
instructions to do so. But in this case, the reason was recorded in the letters I have
specifically discussed, namely that Apollos was in communication with the secon d
respondent, save for the period of a lapse in communication that I have identified.

[116] To summarise this part of the discussion, I have found that the second
respondent became aware of the first breach notice on 14 May 2014. As from that date,
the respondents had 30 days to remedy the breach, which would have lapsed in or
about 13 June 2014. The respondents have not established that they ever complied
with that notice since no payment was ever made to the conveyancer or to Badenhorst
in respect of at least the conveyancer’s invoice . If the second respondent was aware of
the first breach as I have found, and never remedied it, as the evidence establish es,
then the respondents remained in breach , and were still in breach by 25 September
2014. The evidence further establishes that the respondents were made aware of the
cancellation of 25 September 2014 , as indicated by the correspondence of 8 October
2014. In terms of clause 8 in Annexure A, if the respondents failed to remedy the breach
for a period of 30 days after receiving the breach notice, the applicants were entitled to
declare the agreement cancelled and to resume possession and occupation of the
property and to recover any damages suffered.

[117] In any event, the settlement agreement provided that Apollos was the domicilium
address and no one had effected a change to that provision or to the domicilium.
Service upon him amounted to service upon the respondents. This is why the
applicants’ legal representative was at pains to confirm in the second breach notice that
Apollos remained the domicilium. Thus, even if the respondent s did not become in fact
become aware of the breach notice s and the cancellation at the time they were issued,
which I have found was not the case, they are deemed to have received proper notice
thereof in terms of the agreement.

[118] In the result, I conclude that the settlement agreement was validly cancelled by
means of the letter of 25 September 2014 which came to the notice of the respondents,
at the latest by 8 October 2014. The reasons for cancellation were failure to pay for the
conveyancing costs in order to facilitate lodgement and later transfer of the property into
the names of the respondents . Those were requirements of the sale agreement
(annexure A), read with the draft mortgage bond in annexure B. The respondents were
accordingly in breach of both annexures.

Payments due until cancellation35

[119] I have already set out the provisions through which the agreement facilitated the
sale of the property. In sum, it provided for payment of the purchase amount of R2.5
million at R20,000 per month which was to increase after two years to R30,000 per
month, and ten years later the full outstanding balance would be due in a lump sum.
The monthly payments of R20,000 were due with effect from 1 December 2013. The
sale agreement contained an acceleration clause , which first required two separate
written notices within the same calendar year, for remedy of the breach within 10 days.
It is common cause that the applicants are not relying on a breach in this regard and
that no notice was issued with regard to failur e to pay instalments in terms of the sale
agreement, read with the draft mortgage bond. However, the payments were due in
terms of the sale agreement until cancellation of the agreement on 25 September 2014.
That is because of the ‘no indulgence ’ and ‘no w aiver’ clauses in annex ure A, which
provided as follows:

“16.5 No indulgence which either party (“grantor”) may grant to the other (“the
grantee”) will constitute a waiver of any of the rights of the grant or, who will not
thereby be precluded from exercising such rights against the grantee.

35 Paras 1.4 and 1.6 of the referral order of 10 August 2022.

16.6 No waiver of its rights under this agreement by either party will be effective
unless such waiver is express and is in writing.”

[120] There is no evidence that the applicants ever waived their rights to receive any
payment in this matter. In this regard, the evidence of Badenhorst is that by 25
September 2014 an amount of R2,737,273.44 was due and owing in respect of the
purchase price. This was because, according to his allocation of the payments made by
the respondents by that date, only the debt of the appeal costs had been covered,
though not complete. Save to dispute that allocation, which is an issue I deal with below,
his calculations, which were very detailed, were not disputed, and they took into account
the applicable interest rates at different time periods.

[121] Another payment due by the respondents in terms of the agreement is the
amount of R250,000.00 towards the taxed appeal costs, in equal monthly instalments of
R10,000.00. This was in terms of clause 5, which provides as follows:

“5. COSTS
5.1 The Defendants will, jointly and severally, the one paying the other to be
absolved, pay the Plaintiffs’ costs in respect of the Appeal as taxed in the amount
of R250 000 -00 (TWO HUNDRED AND FIFTY THOUSAND RAND), (including
VAT);

5.2 The parties will further be liable for the payment of their own costs in
respect of the Plaintiffs’ action and var ious applications, postponements and the
like.

5.3 The total costs payable as set out above will be payable as
follows:

5.3.1 to be paid in equal monthly installments of R10 000 -00 (TEN THOUSAND
RAND) per month, the first installment payable on or before 7 th of November
2013 and subsequent payments on or before the 7th day of each and every
succeeding month until full payment;

5.3.3 All payments are to be made into Plaintiffs’ attorney of records trust
banking account as set out below:

…

5.2.5 The capital amount of the costs will bear no interest unless
the Defendants are in default.

5.2.6 Should the Defendants however default in the making of any payment due
in terms of this agreement to the Plaintiffs, the capital amount in respect of the
costs as set out in 5.1 above or any balance thereof, will immediately become
due and payable, (default meaning that the payment due is not paid into the trust
banking account as set out above, within 7 (seven) days of the due date thereof),
or whatever balance may be due at that stage will further bear compound interest
at the rate of 15,5% (FIFTEEN COMMA FIVE PER CENT) per annum from 1
October 2013 to date of final payment.”

[122] As appears from clause 5.2.6, default in making payment of the ta xed appeal
costs, which means failure to pay within seven days of the due date, would
automatically trigger acceleration of the capital amount plus compound interest
calculated at the rate of 15.5% with the effect from 1 October 2013 to date of final
payment. No notice was required in terms of that provision.

[123] According to Badenhorst the respondents had paid a total amount of
R110,000.00 by 25 September 2014, in monthly instalments of R10 000, all of which he
allocated towards the taxed appeal costs. B y that date, the total purchase price had
increased to R2,737,273.44, due to interest, and the monthly arrears owed amounted to
R200 000. It was only on 8 June 2015 that the full amount payable towards the appeal
costs was covered, amounting to R248 879.00. That is when he first allocated payment
towards the purchase price , in an amount of R11,879,84. The payments received were
allocated towards interest before allocation to the capital amount. The respondents
continued paying monthly installments mostly in the amount of R10,000.00, although
they were sporadic, until 5 June 2017, which is when the last payment was received
from the respondents. From the proof of payments attached to the answering affidavit, it
is common cause that the total amount paid by the respondents was R407 000, and not
R500 000 as claimed in the answering affidavit and as subsequently mentioned in the
referral order.

The allocations

[124] As I have stated, it is Badenhorst’s allocation of the payments that is at issue,
because, according to the respondents, what they were paying towards was the
purchase price, and nothing else. It is otherwise common cause that no directions or
instructions were given to Badenhorst for allocation of any of the payments. Naturally,
this is an issue that must be determined with re ference firstly, to what the agreement
contemplated, taking into account the terms of the agreement and relevant context, as
set out in the case law earlier.36

[125] In terms of t he agreement, the respondents were required to pay a monthly total
amount of R30,000, made up of R10,000 in respect of the appeal costs and R20,000 in
respect of the purchase price. Instead, they only paid monthly amounts of R10 000,
without explanation or instruction regarding allocation thereof. They were thus in default
of a monthly amount of R20 000 per month from the very beginning. Secondly, the first
instalment payable towards the appeal costs was due on 7 November 2013, and the
respondents resumed their payments o n 11 November 2013. On the other hand, the

36 Engelbrecht and Another v Senwes Ltd , paras 6-7.
first payment towards the purchase price was only due on 1 December 2013, which was
some weeks after the first payment was due in that regard.

[126] Thirdly, what the respondents were required to pay towards the purchase price
was a minimum of R20,000 per month. Even in the oral evidence of the second
respondent, it was never contended that the respondents ever tried to make monthly
payments in that amount in compliance with the agreement. To the extent that it is
alleged that the agreement was for purchase of the property at R10,000 per month,
there is no such provision in the agreement. The only provision in the settlement
agreement for payment of R10,000 per month is in respect of the taxed appeal costs.

[127] Fourthly, unlike in the case of the purchase price , any default in regard to the
appeal cost payments immediately triggered operation of the automatic acceleration
clause. In other words, if Badenhorst had allocated th e monthly payments towards the
purchase pric e, the resulting debt would have been even bigger. This is one of the
reasons he gave for why he considered it in the respondents ’ interests to first allocate
the payments towards the costs’ debt.

[128] In my view, given all the considerations above which are based on the
interpretation of the provisions of the agreement, Badenhorst cannot be faulted for
allocating the monthly payments of R10 000 towards the appeal costs . I consider his
explanation to be reasonable and an approach which was both faith ful to the text of the
agreement, and which made common sense.

[129] In addition to all of this, the law recognizes that a debtor, such as the
respondents in this case, who fails to expressly indicate how payments of a debt are to
be appropriated, may instead give such indication tacitly or implied ly.37 In the absence
of direction from the debtor, a creditor is entitled to appropriate payments based on his
or her dealings with the debtor, which, on application in this case , is the settlement
agreement. The creditor may also appropriate the payments based on amounts paid

37 See Bradfield GB, Christie’s Law of Contract in South Africa, 8th edition, page 518.
which correspond with the debt owed ,38 which is what Badenhorst testified he did ,
based on the regular amounts of R10 000 per month. Much was made of the paymen ts
made in the amounts of R80,000.00 on 8 December 2014, and R50,000.00 on 2
February 2015, to refute Badenhorst’s allocation towards the appeal costs. However, it
is clear that these amounts were exceptions and not the norm , and according to the
common cause evidence, the appeal costs debt was due and only fully paid, even with
inclusion of those amounts, on 8 June 2015. It is also clear that the debt relating to the
appeal costs was more onerous because of its automatic acceleration clause and
interest clause.

[130] In this regard, there are applicable common law principles which include the
following39: (a) The general principle is that the payment ought to be appropriated to the
debt which the debtor had the most interest in discharging, that is to say the debt
bearing most heavily on the debtor; (b) An admitted debt must be paid before a disputed
debt; a debt that is due must be paid before one not yet due; an enforceable debt must
be paid before an unenforceable one; (c) If capital and interest are owing on the same
debt, the payment must be credited first to interest and, if not exhausted, to capital ,
whether or not the running of interest is affected by the in duplum rule. It is clear from
the evidence of Badenhorst that his allocation of the respondents’ payments was
governed by these principles.

[131] On the other hand, the respondents’ version that they were only paying towards
the purchase price and not towards the appeal costs does not accord with the terms of
the agreement. As I have already highlighted, there is no requirement in the settlement
agreement for monthly payment of R10,000 in respect of the purchase price. The
second respondent could not explain what informed his decision in this regard, stating
that it arose from the discussions preceding the settlement, while at the same time
stating that it arose from the settlement agreement itself. Coupled with this was a denial
that the parties reached any agreement for payment of the taxed legal costs resulting

38 Ibid.
39 See Christie’s Law pp 519 – 521, and the authorities cited therein. Miloc Financial Solutions (Pty) Ltd v
Logistic Technologies (Pty) Ltd [2008] 3 All SA 395 (SCA) para [46].
from the appeal, one of the issues that ha ve been referred to oral evidence 40. This
denial is contrary to the express provisions contained in clauses 5 to 5.2.6 of the
agreement, and has no merit. Badenhorst explained the reason for inclusion of the
appeal costs component in the agreement , namely that by then the applicants had
taxed their legal costs in the appeal and executed attachment of the respondents’
movable property.

[132] Another basis for the respondents’ allegation that they were paying towards the
purchase price and not the taxed appeal costs is the alleged termination of the mandate
of Apollos, which I have already dispensed with, and further that the respondents did not
obtain a copy of the settlement agreement and merely paid in accordance with the
second respondents’ understanding of the agreement. Before dealing with this latter
issue, I observe that the subsequent conduct of the second respondent indicates that he
was aware that he was paying towards the taxed legal costs as a requirement flowing
from the settlement agreement.

[133] This appears from the contents of his c orrespondence dated 6 January 2016,
which he addressed to the applicants’ then Secretary General, Dr Stafford Petersen, as
follows:

“May I please humbly request your kind and generous consideration of waiving
our court fees in terms of our agreement made in October of 2012 please. Since
that agreement we have faithfully and punctually paid almost R400,000 at
R10,000 per month and in addition we have already spent in excess of
approximately R1.3 million on our own attorney’s fees for over six years litigati on
fees. Since we… and yourselves… had an amicable settlement in good faith and
we tried to keep up our end of the agreement under difficult and strenuous
economic climate…” (my emphasis)


40 Referral order, para 1.6.
[134] The specific reference to court fees was significant , and t he second respondent
could not explain it when confronted in cross examination , save to confirm that he was
referring to the requirements of the settlement agreement. When it was put to him that
this meant he understood that the agreement includes settlement of legal costs for the
failed appeal he disputed this, stating that he was referring to the R2.5 million portion of
the settlement. But as I have already illustrated, the provisions of the agreement do not
support that allegation.

[135] The issue did not end there. On 20 July 2017 Dr Petersen wrote to the second
respondent and stated as follows, amongst other things:

“Having received a financial statement from our Attorneys, we have discovered
that after the R250 000,00 thousand was deducted by the Attorneys for the fees
that was imposed by the courts for the failed appeal , an amount of R277 000.00
was transferred to us towards the payment of the offer of R2 500 000.00…” (my
emphasis)

[136] Badenhorst confirmed that this was a reference to the taxed a ppeal costs as
provided in the agreement. This is clear from the specific mention of the amount of
R250 000,00. The second respondent confirmed that he received this letter, but his
evidence was that he did not challenge the allocation of the respondents’ payments
towards the taxation costs at that stage or ever. He could not explain why no challenge
or query was ever made in this regard. The reason can only be that he was aware of the
requirement in the settlement agreement for payment of the taxed appeal fees and it
was not a surprise to him. It would make no sense for him to let an issue involving such
large amounts of money slip by, without raising alarm. His attitude in this regard is
corroboration of his earlier correspondence of 6 April 2016 in which he made specific
reference to court fees . In fact, the second respondent responded to the e -mail of 20
July 2017 by e -mail dated 26 March 2019, expressly stating that “we make this offer in
line with your last e -mail dated 20 July 2017 ” indicating that the contents of that letter
were acceptable to him, and were not new.

[137] Turning to the allegation that the respondents did not obtain a copy of the
settlement agreement after sign ing it, one difficulty with the respondents’ version is that
even if the mandate of Apollos was terminated which I have already found was not, it is
common cause that they were also represented by junior and senior counsel who were
present at the signing of the settlement agreement . Similar to the details relating to
Apollos’ mandate, the second respondent was tight-lipped regarding the two counsel’s
involvement after the signing of the agreement . The difference is that, although he
claimed that Apollos had thrown him to the wolves at that settlement discussion, there
was no similar allegation regarding coun sel who w ere both present. The unanswered
question then is why could he not obtain a copy of the settlement agreement from them .
Similar questio ns arise in respect of the second respondent’s now deceased brother
who accompanied him to that meeting.

[138] There re main many unanswered questions relating to the second respondent’s
alleged lack of knowledge of the terms of the settlement agreement. He could not
explain how and where he obtained the bank details into which he was supposed to
pay, which were the bank details of Badenhorst’s trust account, and was very evasive
when questioned in this r egard. At first, he stated that he obtained those details from
Apollos although he could not give details of when this would have occurred. When it
was put to him that, if he obtained the bank details from Mr Apollos, this could have only
been after signing the settlement agreement, which he disputes, he stated that he could
have obtained the bank details from Pastor Le Fleur, but again, he gave no details of
when this would have occurred. Eventually, however, he agreed that it was possible that
Apollos gav e him the bank details on another day after signing the settlement
agreement. In the same breath, he stated that it could have been on the same day of
signing the settlement agreement.

[139] He was repeatedly asked during cross examination to provide details regarding
the circumstances in which Apollos would have furnished him with the banking details ,
but failed to do so . One observation that may be made is that it would make no sense
for Apollos to only furnish the second respondent with the bank det ails without giving
him a copy of the settlement agreement, because the banking details were contained in
the settlement agreement. It would have been efficient for Apollos to rather provide his
client with the whole agreement. Besides, the evidence of B adenhorst was not
challenged that he personally made the photocopies w hich he distributed to everyone
present in the room on the day of the settlement agreement. It was also not suggested
that Badenhorst gave copies to everyone in the room on that day excep t for the second
respondent, which would also make no sense and be highly improbable.

[140] Apart from all of this, the second respondent gave no reason which prevented
him from requesting a copy of the agreement from any of the people who were present,
including Badenhorst and the applicants . In this regard, the common cause facts were
that he remained in discussions with the applicants for some years after 2013, at least
until 2019 when these proceedings were launched. There were many discussions held
and plenty of correspondence exchanged between the parties during that period relating
to the implementation of the settlement agreement, and possible other solutions to the
issues between them. It is simply inconceivable that the second respondent did not
have a copy of the settlement agreement during that whole period. Furthermore,
according to the evidence, at no point did the second respondent ever request a copy of
the settlement agreement on the supposed basis that he did not have it.

[141] The probabilities on t his issue are decidedly against the respondents ’ version.
According to the second respondent, he ‘smelled a rat’ when he overheard a telephone
conversation between the applicants’ counsel and one of his clients immediately
following the signing of the sett lement agreement. It is highly improbable that he would
not have obtain ed a copy thereof , whether immediately or soon thereafter, to assure
himself as to its contents.

[142] Still further, on the second respondent’s own version, he was not only acting for
himself, but was representing his congregation . One assumes that he would have
reported back regarding the settlement talks , and the most obvious and important
accountability measure would have been to present them with a copy of the agreement.
After all, according to him , he had just committed the congregation to payment of R2.5
million over a period of 10 years . Why would anyone commit to pay that amount of
money without any document presented to them ? That includes him as a learn ed man
who has bought, sold and project-managed numerous property purchases, according to
the evidence.

[143] I therefore find that the respondents were indeed required to make payments in
respect of the taxed appeal costs in the amount of R250 000 , in monthly instalments of
R10 000, and were aware thereof, and that the applicants were entitled to allocate the
respondents’ payments towards those costs.

[144] Since there is no objection to the mathematical calculations of the ap plicants, I
find that all the payments made by the respondents, totaling R407 000, were allocated
towards what was due and owing in terms of the agreement , namely the taxed costs
and the purchase price of the property . The evidence established that as at 25
September 2014 the total purchase price debt amounted to R2,737 ,273.44 due to
interest, and the monthly arrears owed amounted to R200 000; and of the appeal cost
debt of R250 000, the respondents had paid a total amount of R110,000.00. Thus, at the
point of cancellation, there were monies owed in respect of both of those debts, and
accordingly, the fact that some of the respondents’ payments were made after
cancellation does not alter the fact that the monies were due and owing. This is
because firstly, in relation to the appeal costs, clause 5.2.6 provided as follows:
“Should the defendants however default in the making of any payment due in
terms of this agreement to the plaintiffs, the capital amount in respect of the
[appeal] costs or any balance thereof, will immediately become due and payable,
(default meaning that the payment due is not paid into the trust banking account
as set out above within seven days of the due date thereof), or whatever balance
may be due at that stage will further bear compound interest at the rate of
15.5%... per annum from 1 October 2013 to date of final payment.”

[145] Similarly, the sale agreement contained several clauses which lend themselves
to the conclusion that, even without demand, the respondents were liable for payment,
namely clauses 8 (default clause), 12 (non-waiver clauses), 16.5 (no indulgence clause)
and 16.6 (no waiver clause). Clause 12 in the only one I have not previously set out,
and it provides as follows:

“No latitude, extension of time or other indulgence which may be given or allowed
by the seller to the purchaser or vice versa in respect of the performance of any
obligation in terms of or arising from this agreement shall be a waiver or
otherwise affect any of the rights of the seller against the purchaser or vice
versa.”

[146] To the extent that it was suggested that the respondents’ monthly payments
entitled the respondents to transfer of t he property, there is no basis for this suggestion
in the agreement because there were several suspensive conditions to be met before
transfer, including payment of the conveyancing fees. The evidence was also that the
respondents have never demanded trans fer of the property since conclusion of the
settlement agreement. There is also no evidence that the respondents ever offered to
pay for the conveyancing costs , even whilst the second respondent was in direct
communication with the applicants or their legal representative.

[147] On the other hand, t he undisputed evidence of Badenhorst was that after the
conclusion of the settlement agreement, the applicants’ priority was the registration of
the property. Hence the first breach notice of 9 April 2014. And hence the decision to not
issue a demand in respect of the failure to pay the monthly instalments of R20,000
which were due in terms of the sale agreement. None of this evidence was disputed. In
other words, the evidence shows that if there was a way possible to effect the transfer
to the respondents, the applicants would have facilitated it. The only obstacle, according
to the applicants was the respondents’ failure to comply with the suspensive condition of
paying for the conveyancing fees.

[148] The applicants could not have allocated the payments towards the City’s rates
invoice or the conveyancer’s invoice without instructions from the respondents because
that would have meant that no installments were made by them in respect of the
purchase price and the appeal costs. The payment for transfer costs was a separate
payment, involving amounts specified in invoices, which were due in terms of the
agreement to the conveyancer . In law, one of the indications regarding how a payment
is to be appropriated is where a creditor has demanded payment of a particular debt ,
and the payment amount corresponds with the demand .41 There was no such amount
which corresponded either with the City’s invoice or that of the conveyancer in this case.
In any event the respondents have at no stage suggested that the monthly payments
were intended as payment of the conveyancing costs.

[149] Since cancellation of the agreement i t is common cause that , to date, the
respondents have never issued any court process for restitution that they now argue
they are entitled to. Instead, they opted to negotiate for a further, reduced, agreement,
an issue I turn to below. In any event, as the applicants point out, any such restitutionary
claim would long have prescribed by now given that the common cause facts show that
the respondents made payments between 2013 and 20 17, and that the second
respondent claims he came to the knowledge of all available facts in that regard, at the
latest in 2019 when these proceedings were launched. In terms of the Prescription Act
68 of 1969 such a claim would constitute a debt which prescribe s within 3 years.
Furthermore, clause 6 of the agreement stipulates that the parties to the settlement
agreement will have no further claims against one another except as provided for in the
settlement agreement, which constitutes the entire agreement between the parties.

Alleged new agreement

[150] It will be remembered that one of the points raised in the answering affidavit is
that the court should grant a declaratory order to the effect that the parties entered into

41 Italtile Products (Pty)Ltd v Touch of Class 1982 (1) SA 288 (O) 291A-B.
a new agreement after the cancellation of the settlement agreement. 42 The new
agreement was said to be based on a purchase price of R1,000,000. The second
respondent testified that the alleged new agreement is based on Dr Petersen’s letter of
20 July 2017 in which it was stated that no offer below R1m would be considered by the
applicants. During argument the respondents ’ counsel disavowed any reliance on that
issue, stating that no such relief had been sought. It is not clear whether that also
means the respondents no longer insist that a new agreement was entered into.

[151] To the extent that it is necessary to decide this issue, the evidence does not
support the allegation that a new agreement was entered into between the parties. To
start specifically with the letter of 20 July 2017 which the second respondent allege s
constituted a new agreement, its contents stated as follows:

“As you can see that your offer is well below the original offer from yourself. The
Moderateur is wanting to settle this matter as well, and it is with this in mind that
we suggest that you up your final offer of a cash amount of R1,000,000... Should
such an offer be forthcoming the Moderateur will certainly motivate strongly that
the Executive Council consider accepting the offer. We do not see our way clear
of accepting an offer anything less than R1,000,000. We anticipate your
favourable response …”

[152] In cross examination, the second respondent conceded that this letter did not
constitute an agreement, and that, in fact no agreement was reached in the end. That is
the death knell on the alleged new agreement.

[153] What the evidence shows r ather, is that the parties continued to exchange
proposals, including two draft agreements from the applicants dated 18 March 2018 and
18 July 2018, but no agreement was reached. It was in fact the respo ndents who failed
to respond to these draft proposals despite prodding on 16 August 2018 and 28 August
2018. Then , on 9 October 2018 the second respondent sent what was effectively a

42 Answering affidavit, paras 82, 85 to 85.5 and 121.
counter-proposal, which was rejected by the applicants on 15 November 2018. That is
the extent of the attempts to enter into a new agreement, and it shows that no
agreement was concluded . As the applicants point out, any such agreement would be
required to comply with the Alienation of Land Act 68 of 1981, which requires, amongst
other things, that such an agreement be written. No such document has ever been
produced by the respondents i n this matter. Similarly, the settlement agreement
provides, at clauses 7 of the main agreement and 11 of the sale agreement, that any
variation or cancellation will only be valid if reduced to writing and signed by the parties.

[154] What remains for consideration is the respondents’ right to occupy the property
following cancellation of the settlement agreement.

Respondents’ right to occupy after cancellation43

[155] In the absence of the settlement agreement or a new agreement in place, the
respondents claim a right to possession and ownership of the property by virtue of the
payments they have made , and claim that, in any event, the property has been theirs
from the start. I have already dealt with the allocation of the payments made by the
respondents. Even in the respondents ’ minds the payments were not made in vacuum,
but were made pursuant to the settlement agreement , although as I have found it was
cancelled. There was never any agreement, for example, that the monthly payments of
R10,000 were somehow to be deemed as payment for rental in terms of a new
arrangement. There was simply no new arrangement regarding possession and
occupation between the parties after cancellation. That is, except for the position
provided by clause 8.1 of the agreement, in terms of which the applicants were entitled
to resume possession and occupation. The fact that the respondents made payments to
the applicants did not grant them a right to claim possession, let alone ownership of the
property. In fact, they have had the beneficial occupation in the interregnum between
cancellation of the agreement and these proceedings. More so given the common
cause evidence that they stopped making any payments whatsoever since 2017.

43 Referral order, paras 1.18 -1.23.

[156] What remains for consideration is the respondents’ right to possession and
occupation based on ownership of the building since its erection. The legal position set
out in the case law referred to earlier is that the original dispute between the parties
must be considered res judicata in light of the settlement order, and that the rights of the
parties must henceforth be determined in light of the agreement . It is relevant in this
regard that the cancellation clause relied upon by the applicants did not resuscitate the
original lis between the parties , but specifically states that in the event of such
cancellation the applicants , described as ‘seller’ in the agreement , shall be entitled to
“resume possession and occupation of the property” . This provision must be read in the
context of the rest of the agreement, chief among which is clause 2, which provides as
follows:

“2. AGREEMENT AND ACKNOWLEDGEMENTS

2.1 OWNERSHIP

2.1.1 The Defendants acknowledge the ownership of the Second , alternatively
Third, alternatively Fourth, alternatively First Plaintiff in respect of the immovable
property.

2.2 NAME CHANGE
2.2.1 The Defendants acknowledge that the name change effected on the Title
Deeds of the immovable property by the [Registrar of Deeds] was irregular and
not in terms of the provisions of the Deeds Registry Act.
2.2.2 The [Registrar of Deeds] is hereby authorized and requested to rescind
and cancel the name change and restore the Title Deeds of the immovable
property as it was before the name change.”

[157] It will be remembered that the main issue between the parties , which formed the
subject of the 2006 action proceedings, and in respect of which negotiations were held
leading to the conclusion of the settlement agreement, w as the possession and
ownership of the property. That much is apparent from the answering affidavit deposed
by the second respondent on 8 Ju ly 2019, where he stated that the settlement
proposals received from the applicants before agreement “were mainly focused on us
conceding our ownership of the property and acknowledging that [the applicants] are
the legitimate owners” . This is why the Registrar of Deeds was authorized , in terms of
the agreement to rectify the title deed by inserting the name of the second applicant as
the owner. The deed of transfer indicates that, pursuant to the settlement order, the
Registrar of Deeds, did cancel the name change effected by the respondents in 2000,
and replaced the first respondent with the second applicant’s name as the owner.
Although this only occurred on 17 August 2015 according to the evidence , it was the
position that was put into place by the pr ovisions of the settlement agreement and
immediately became operational.

[158] What the agreement did was to facilitate the respondent s’ possession and
occupation pending transfer of ownership to them in terms of the sale agreement . This
is why the settlement agreement provided that , upon cancellation, the applicants were
to resume possession and occupation. During the period of validity of the settlement
agreement, it granted the respondents lawful possession and occupation, which
terminated upon cancellation. The result is accordingly that, the cancellation of the
agreement means the applicants are entitled to regain possession and ownership of the
property.

[159] But in any event, the respondents’ alleged right to ownership of the property has
no merit because of the provisions of the governing constitution of the applicants, which
was in place at the time of the respondents’ departure from the applicants . To use the
second respondent ’s language , if that constitution is applicable then the respondents ’
case is ‘dead in the water’. That, unfortunately, is the case. The relevant provisions of
the constitution include the following:

“Dissolution of the local Church

5.4.6.3.10 In the event of a local church dissolving, the property of such local
church movable as well as immovable, shall be transferred to the Regional
Council with jurisdiction over such local church, or in the event of there being no
Regional Council44, to the Executive Council45.

Disposal of Funds and Properties

5.8.2.1 All funds and properties, movable and immovable, and all assets
and liabilities belonging to a dissolved local church shall at the time of its
dissolution revert to and become the property and responsibility of the Regional
Council to which such dissolved local church belonged, without compensation,
and according to the ruling set forth in Article 5.4.6.3.10.

In justifiable cases, immovable property vested in the Regional Council of the Full
Gospel Church of God may be disposed of with the approval of the Executive
Council, and the proceeds thereof shall be retained by the Region, for capital
expenditure; or otherwise, as approved by the Executive Council.

5.8.2.2 If no Regional Council exists or is functioni ng in the area where
such local church is situated at the time of its dissolution, all funds and properties
movable and immovable and all assets and liabilities of such dissolved local
church, shall revert to and become the property and responsibility of t he
Executive Council without compensation, and according to the ruling set for in
Article 5.4.6.3.10.

5.8.2.3 In all cases, all such immovable property vested in the Executive
Council of The Full Gospel Church of God may be disposed of by the Executive

44 It is common cause that, in this case, ‘Regional Council’ is the second applicant.
45 It is common cause that, in this case, ‘Executive Council’ is the third applicant.
Council and the proceeds thereof shall be retained for capital expenditure and
allocated to the work of the Church as it shall deem fit.

5.8.2.4 In the event of a secession of members resulting in the dissolution
of a local church, all property movable and immovable and all assets and
liabilities, shall revert to the respective council as specified above in Section
5.8.2.1-4 of this Article, without compensation.

Properties of Dissolved or Seceding Local Churches

6.11.1.10 Subject to Article 6.11.1.12 belo w, the Regional Council shall be
obliged to take charge of all property, assets and liabilities of dissolved or
seceding Local Churches. The provisions as set forth in Article 5.4.6.3.10 and
Article 5 Section 8 of the By-Laws shall apply.”

[160] In the answering affidavit , all the contents of the applicants’ constitution are
admitted. The respondents contend that they had a right to retain the property after
departing from the applicants because the applicants had failed to make any financial
contribution towards the construction of the new building , and as a result, the building
belongs to them (“the financial contribution argument” ). The second basis arose during
the second respondent’s oral evidence, and I deal with it in due course.

[161] The respondents state that they undertook numerous fundraising efforts,
including a personal bond by the second respondent, for the purpose of erecting a
church building which took 12 years to build, and eventually moved into the structure in
December 1999 . Throughout that time, they state that the applicants only ever
contributed a loan amount of R10,000 -00 towards the construction of the building, and
otherwise made no financial contribution. The applicants could neither confirm nor deny
most of these all egations because the relevant leaders of the applicants who were
involved at the time of the events, are deceased or unspecified by the respondents, and
as a result, the applicants delivered notices in terms of Uniform Rule 35(12) and (14)
before they could deliver a replying affidavit, essentially seeking proof of the allegations,
but there has never been response by the respondents. One notable omission from the
evidence is any proof whatsoever of the discussions and agreements alleged by the
second respo ndent which led to him joining the applicants’ fold, especially any terms
obliging the applicants to make financial contributions as alleged. The contents of these
discussions are furthermore set out in vague terms, with no indication for example, of
who w as involved in the discussions with the second respondent, an issue that was
raised in the replying affidavit.

[162] Nevertheless, w hat is relevant when considering the financial contribution
argument is that, in the answering affidavit, the second respondent states that during
the discussions which led to the respondents joining the applicants, the applicants
offered to make supportive structures available to the respondents , and in particular,
“they made it clear that [the respondents’] goal to acquire land [for their congregation ]
would be made easier if we associated ourselves to [the applicants]”. The terms were
accepted by the respondents, who assumed the name of the applicants, and as agreed,
the respondents obtained land during 1987.

[163] The title deed indicates that on 11 February 1987 the second applicant
transferred the property to the Belhar Assembly Local Church , which registered the
property in the name of its church council . This was in terms of the applicants’
constitution, which required that any property purchased by local churches, Regional
Councils and the Executive Council be held in the name of the council concerned, as
follows:

“Section 1 – Registration of Property

5.1 Clause 5 section 1 – All properties purchased by local churches, Regional
Councils and the Executive Council shall be held in the name of the council
concerned and shall read as follows:

Local Churches

5.1.1 All properties acquired by local churches shall be held in the name of the
Governing Body of that specific assembly of the Full Gospel Church of God in
Southern Africa, for and on behalf of the specific local church.”

[164] Thus, on the respondents’ own version, one of the main reasons the y decided to
join the applicants was to obtain land so that a church building could be erected on it ,
and the applicants did comply in that regard . But in return, again a ccording to the
respondents, they were required to resort under the aegis of the applican ts. In this
regard, the second respondent admitted that he was aware of the provisions of the
applicants’ constitution at the time, and the fact that he and the respondents became
subject to them. That is a significant admission. Apart from the provisions already set
out above, the applicants’ constitution provides as follows:

“Section 1 – Church as a Body Corporate

The [first applicant] is “an association not for gain, of Christian believers
assembled in local churches, and shall be a body corporate, shall have perpetual
succession, and shall own and hold all its property of whatsoever nature, kind or
description in its own name and distinct from that of its members.

Section 2 – The Local Church as a Body Corporate

A local Church in the Fu ll Gospel Church of God in Southern Africa shall be a
body corporate, shall have perpetual succession, and shall own and hold all its
property of whatsoever nature, kind or description in its own name and distinct
from that of its members, and shall act th rough its duly constituted Governing
Body.

Section 3 – Regional Councils

Each Regional Council shall be a body corporate with perpetual succession and
shall act through its duly constituted management committee which shall be its
organ.

Section 4 – Executive Council

The Executive Council shall be a body corporate with perpetual succession and
shall act through its duly constituted Moderateur, which shall be its organ.

[165] There is no ambiguity in these provisions, and none has been raised by the
respondents. They confirm the perpetual succession of the applicants, and also confirm
that the applicants were entitled to hold “all its property of whatsoever nature, kind or
description in its own name and distinct from that of its members”.

[166] One of the allegations made in the answering affidavit is that “a condition of our
[joining the applicants was] that we would operate independently, acquiring property and
funding such acquisition of property and assets on our own”. I have not been shown any
provision in the applicants’ constitution, or any other document which augmented the
above provisions by adding that there was possibility of co -ownership of property with
the respondents , or providing for a spe cial arrangement in terms of which the
respondents could own this particular property to the exclusion of the applicants. Such a
condition would have amounted to significant amendment of the applicants’
constitutional provisions, and I would have ex pected it to be in writing as recordal of the
amendment, and in compliance with the provisions of the Alienation of Land Act.
Similarly, I was not referred to any requirement in the applicants’ constitution, or any
other document in terms of which t he application of the constitutional provisions was
made subject to any financial contribution being made by the applicants , and one would
expect that to be recorded if it was so agreed.

[167] The second respondent understood the significance of these constitutional
provisions because he admitted during cross examination that, in his understanding, the
application for a name change that was made to the Registrar of Deeds in terms of
section 93(1) of the Deeds Registries Act was going to amount to a transfer of rights,
meaning that the property was now to be owned by the new entity, namely the first
respondent. Apart from the fact that this was in direct contradiction to the statement he
made under oath and submitted to the Registrar of Deeds at the time , it shows that he
knew that, by seeking the name change, the respondents were effecting a transfer of
property rights to themselves. That could only be the position if they knew that those
property rights legally resorted elsewhere in the first place.

[168] In his oral evidence, the second respondent stated that the respondents had
received advice when the y left the applicants, to the effect that they were not bound by
the provisions of the applicants’ constitution because it is subordinate to the Constitution
of the Republic and they were only bound by the latter. I understood this to mean that
the provisions of the applicants’ constitution were said to be contrary to the Constitution.
It is common cause that no proceedings have ever been launched by the respondents
to set aside the provisions of the applicants’ constitution or to challenge their
constitutionality, whether before, or after the y departed from the applicants .
Furthermore, given that the respondents received the legal opinion as far back as 2000
giving such advice, I would have expected this issue to be raised in the answering
papers, and at least for the basis of that legal opinion to appear therein. But in any
event, as I have already mentioned, none of this appears in the answering affidavit and
it was raised for the first time during the oral evidence of the second respondent, without
being put to Badenhorst for comment. The unfairness is patent.

[169] I accordingly cannot find that the respondents ha d any right to lawful possession
and occupation of the property, since cancellation of the settlement agreement . Instead,
as from 25 September 2014 , the correspondence contained in the bundle shows that
the applicants demanded keys and possession of the property , forthwith. In the letter of
1 December 2014, the applicants threatened to issue a warrant of ejectment unless a
satisfactory settlement arrangement could be reached . On 16 January 2015 the
applicants threatened to launch proceedings for a rei vindicatio, a name for the current
proceedings. It was thereafter that the second respondent communicated directly with
the General S ecretary of the applicants , until 15 November 2018 when those
negotiations broke down , and the applicants demanded once again that occupation be
restored within 14 days failing which these proceedings would be launched . I have not
been referred to any document indicating that during these negotiation s a new
arrangement was reached allowing the respondents to remain in possession and
occupation of the property. Although all of this took a long time, it is not disputed that the
applicants were loath to litigate , and accordingly , the delay cannot be cons trued as
permission for the respondents to remain at the property . In fact , all of the
correspondence I have referred to indicates that the applicants were eager to finalise
the negotiations without further delays, and made mention of ‘ further extensions ’,
‘indulgences’, ‘opportunity upon opportunity ’ and not being ‘satisfied with the progress ’.
There is no way in which any of that correspondence can be construed as a legal right
for the respondents to possess or occupy the property. For all the reasons discussed in
this judgment, the applicants have made out a case for the relief they seek.

G. COSTS

[170] There is no reason why costs should not follow the result. This is especially so in
circumstances where the parties concluded a settlement agreement , the object of which
was to obviate the need to litigate, or at least to curtail litigation . Contrary to that usual
intention of entering into settlement agreement, the process has been unusually long ,
taking four years to reach hearing stage . The respondents had to be compelled to file
an answering affidavit by means of a chamberbook application, after numerous, written
requests for it.

[171] The litigation style of the respondents has left much to be desired, evincing a
lackadaisical approach and discourtesy, not only to the applicants but also to the court.
One example is that the referral order of 10 August 2022 gave detailed directions
regarding the leading of oral evidence . No witnesses were to be called unless written
statements summarizing the ir evidence were delivered 60 days ahead . Discovery was
to be made 90 days of the making of the referral order. The respondents did not comply
with any of these orders , despite various correspondence from the applicants ’ legal
representatives, effectively reminding them of the impending proceedings and the need
to comply with the provisions of the order . It was only after hearing the evidence of
Badenhorst that an application was made for the second respondent to lead evidence ,
and whilst the opportunity was granted, the condonation application gave very little , if
any explain for the discourtesy towards the court and the opposing parties. However, for
the sake of progress given the delays in the matter , and to provide both parties the
opportunity to finally ventilate the matter, the opportunity was granted.

[172] There have also been numerous postponements in the matter. One
postponement that stands out was on 24 May 2022, in respect of which the court issued
an order that the current attorney representing the respondents, Mr. Donovan Sam ,
“must, within 1 (one) week from the date of this order, that is by 2 June 2022, make
submissions on affidavit to Henney J… , with a copy to all other parties, as to why he
should not be ordered to pay the wasted costs occasioned by the postponement of the
application on 24 May 2022, de bonis propriis”.

[173] The order was issued because, on the morning of the hearing of the matter of 24
May 2022, the second respondent arrived in court and informed the court that he had
only been advised on the previous evening that the matter was set down for 24 May
2022, and he did not have legal representation, and sought postponement of the matter.
Sam had delivered a notice of withdrawal on 23 May 2022 . Moreover, Sam was in
attendance on the day, but not in a representative capacity . In terms of the order of 24
May 2022, t he applicants ’ attorney was gr anted opportunity to respond to Sam’s
affidavit within 11 days thereof. Both attorneys did indeed file affidavits as ordered , and
there are many issues in respect of which they disagree, dating as far back as 2019, but
I focus on the relevant aspects.

[174] According to Sam, on 6 May 2022 Badenhorst had called him to advise that the
matter had been set down for hearing on 24 May 2022 , and he had informed
Badenhorst that he had not received notification of set down. He advised that he would
not have sufficient time to consult and prepare for the hearing, and was in any event not
available because he had a possible hearing in Pretoria as well as a trial in Bellville,
both on the same day. According to Sam, he and Badenhorst agreed that the latter
would remove th e matter from the roll, and Badenhorst had requested him to provide
alternative dates of his availability in August 2022. Badenhorst had confirmed this
conversation in a subsequent letter dated 9 May 2022, in which he attached further
documents which indicated, amongst other things, that Badenhorst had previously sent
the notice of set down of 24 May 2022 to Sam's old e -mail address on 23 March 2022 .
On 16 May 2022 Sam says he telephonically informed Badenhorst that the respondents’
counsel was busy with t rial proceedings and w as to provide the requested alternative
availability dates in due course . He was still waiting for his counsel’s availability dates
when he received notification from the registrar of Henney J, on 19 May 2022 that the
matter was to proceed on 24 May 2022.

[175] In response to the email of 19 May 2022, Sam requested that the matter be
removed from the roll because he was unavailable, and stated that he had reached
agreement with Badenhorst for removal of the matter from the roll, which elicited back
and forth communication between he and Badenhorst, with the registrar in copy.
Eventually, Henney J declined the request to remove the matter fr om the roll by e-mail
from his registrar dated 23 May 2022 , recording, amongst other things that the Judge
had read the record and was prepared to proceed with the matter on 24 May 2022.

[176] The letter of 9 May 2022, which Sam admits confirmed the telephonic discussion
of 6 May 2022 does not support his version that the two attorneys agreed to remove the
matter from the roll. A generous interpretation in his favour is that Badenhorst promised
to endeavour to do so, as follows:

“15. We will instruct our correspondent to endeavour to have the matter removed from
the roll, which may be difficult as a result of the fact that the Application was postponed
to 24 May 2022, by the Honourable Judge.

16. If they agree to remove it , we confirm that the wasted costs occasioned by the
removal will be reserved.

17. If we cannot succeed in removing it, we urge you to immediately prepare and
serve and file the Respondents heads of argument. I look forward to receiving your
urgent response.”

[177] There was a further letter from Badenhorst dated 17 May 2022, which confirms
Sam’s version that Badenhorst had requested dates of availability for hearing of the
matter in August 2022. However, th at letter also stated as follows: “Should you not
assist us in this matter [by providing the dates of availability] the matter will be
proceeding on 24 May 2022. We look forward to hearing from you urgently” . This part of
the letter confirms that the telephonic discussion of 6 May 2022 had not settled the
issue of the hearing date of 24 May 2022 and that a hearing on that date was still a
possibility; and in light thereof Sam was urged to act with haste. In short, it shows that
by 17 May 2022, Sam was aware that the matter might still proceed on 24 May 2022
and had not been uplifted from the roll . Sam responded to the letter of 17 May 2022 by
e-mail of 18 May 2022 stating that he “will forward to our coun sel and revert back with
available dates in August 2022”. It is common cause that he never responded with those
dates.

[178] According to Sam’s version, he must not be held responsible f or any conduct
during that two-and-a-half week period from the time he heard about the set down date
on 6 May 2022 because firstly, Badenhorst was supposed to remove the matter fr om
the roll, and secondly, he was waiting for his counsel to provide the availability dates in
August 2022. As regards the first, he puts the blame on Badenhorst because he never
came back to him after the conversation of 6 May 2022 to tell him that he was not
successful in removing the matter from the roll of 24 May 2022. But the correspondence
set out above shows otherwise. As regards the second, his version is that he had
promised to revert with those availability dates two weeks prior, in the telephonic
discussion of 6 May 2022, but had not reverted with those dates by 19 May 2022 when
he received the communication from the Judge’s registrar confirming that the matter
was to proceed on 24 May 2022. The reason he has given for that delay is his counsel’s
involvement in another trial.

[179] What Sam never addresses is what he did between 6 May 2022 and 23 May
2022 once he became aware of the set down date. According to his clients, he did not
even inform them of the set down date until 23 May 2022. Furthermore, there is no
indication that he even attempted to obtain any availability dates for August 2022 during
that period.

[180] The set down date of 24 May 2022 was in terms of a court order of the previous
Judge President, and was not an agreed date. That, on its own, was reaso n for Sam to
have attended to the matter with the requisite haste and seriousness it deserved. It
cannot serve an officer of the court to blame another for not complying in that instance.
Such a supine attitude is inimical to his duties as an officer of th e court and as a legal
practitioner. It was highly reckless of him to assume, without more, that the date could
just be erased by a purported telephonic agreement. Even more so when he was
informed that the removal was not a fait accompli. A duly diligent attorney would have
made endeavours during that t wo and a half -week period, to make himself available or
make someone else available in his stead. He would not wait until the last hour before
filing a notice of withdrawal. The matter, it m ust be remembered, concerned motion
proceedings in respect of which the affidavits had been delivered. What was required as
at 6 May 2022, was the filing of the heads of argument. It has not been explained why
that could not be done, even by other counsel, on the basis of the papers already filed.

[181] Needless to say, the decision to withdraw at the very last hour, on 23 May 2022,
was prejudicial to the parties , not least of which were his clients , and to the
administration of justice . It is no wonder that the court requested an affidavit from him
under oath, which is an unusual development. The public deserve s and relies upon on
the proper administration of justice, and that in turn relies upon legal practitioners
conducting themselves with the appropriate diligence and respect that the profession
demands.

[182] I am accordingly of the view that Sam’s conduct displayed great discourtesy to
the court and to his clients and to the applicants. Even his own clients should not be
required to pay f or such grossly reckless and negligent conduct. It also amounted to
gross dereliction of professional duty.

H. ORDER

[183] In the circumstances, the following order is made:

(1) The respondents and all those occupying the property known as erf 1 [...] Bellville
(held by Deed of Transfer 7010/93), situate at 4 B [...] Circle, corner F [...] & B [...]
Crescent, Belhar, Cape Town (“the property”) shall vacate and give possession thereof
to the applicants, by end of Friday 26 July 2024.

(2) The respondent s shall hand over all keys and mechanisms of access to the
gates and buildings on the property to a person nominated by the applicants or the
applicants’ attorneys of record, by end of Friday 26 July 2024.

(3) Should the respondents fail to comply with paragr aphs (1) and (2) above by end
of Monday 29 July 2024, the sheriff is authorized to evict the respondents and any
person or entity occupying the property, and to restore possession to the applicants.

(4) The first, second and third respondents are to pay the c osts of this application on
a party-party scale, in terms of scale C of Uniform Rule 67A, jointly and severally, the
one paying the other to be absolved.

(5) Mr. Donovan Sam, the respondents’ attorney, shall pay for the wasted costs
occasioned by the postponement of 24 May 2022 de bonis propriis.

___________________________
N. MANGCU-LOCKWOOD
Judge of the High Court

APPEARANCES

For the applicants : Adv J A Du Plessis

Instructed by : Mr H Badenhorst
J J Badenhorst & Associates Attorneys & Inc.

For the respondents : Adv M Filton

Instructed by : Mr D Sam
Sam Attorneys