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[2020] ZASCA 124
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Whitehead and Another v Trustees of the Insolvent Estate of Dennis Charles Riekert and Others (567/2019) [2020] ZASCA 124 (7 October 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 567/2019
In
the matter between:
RENETTE
WHITEHEAD
FIRST APPELLANT
JACOBUS
HERCULES DU PREEZ
SECOND APPELLANT
and
TRUSTEES,
INSOLVENT ESTATE OF
FIRST RESPONDENT
DENNIS CHARLES
RIEKERT
ALVIN HENRI
FUHRI
SECOND RESPINDENT
DESMEON LOUIEN
FUHRI
THIRD RESPONDENT
ABSA BANK
LIMITED
FOURTH RESPONDENT
THE REGISTRAR OF
DEEDS,
FIFTH RESPONDENT
MPUMALANGA
THE MINISTER OF
AGRICULTURE,
SIXTH RESPONDENT
FORESTRY AND
FISHERIES
THE SHERIFF OF
THE HIGH COURT
SEVENTH RESPONDENT
MBOMBELA
YOLANDÈ
THÊRESA NAIDOO
EIGHTH RESPONDENT
SHAN VISHNU
NAIDOO
NINTH RESPONDENT
Neutral
citation:
Whitehead
and Another v Trustees of the Insolvent Estate of Dennis Charles
Riekert and Others
(567/2019)
[2020] ZASCA 124
(7 October 2020)
Coram:
NAVSA, MBHA
and MOCUMIE JJA and SUTHERLAND and POYO-DLWATI AJJA
Heard:
16 September
2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 7 October 2020.
Summary:
Civil
law and procedure – court proceedings challenging effect of
prior court order – no application for rescission
or appeal
pursued – existing order bar to relief sought – doctrine
of peremption also operating against appellant
–
prior order
remains standing.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (functioning as Mpumalanga
Circuit Court, Mbombela) (Masango AJ sitting as court of
first
instance):
1
The
appeal is dismissed.
2
The
order of the court a quo is set aside and substituted with the
following: ‘The application is hereby dismissed with costs
on
the attorney and client scale, including the costs of one counsel.’
3
The
costs of the appeal to be borne by the appellants, jointly and
severally, the one paying the other to be absolved.
JUDGMENT
Sutherland
AJA
(Navsa,
Mbha and Mocumie JJA and Poyo-Dlwati AJA concurring):
[1]
This case is about a contrived attempt by the appellants to undo, by
subsequent proceedings, the effect
of an earlier unchallenged court
order.
[2]
The first appellant, Ms Renette Whitehead, and Mr Charles Riekert
were once a couple. In 2007, together,
they bought a farm from the
second and third respondents, Alvin Henri Fuhri and Desmeon Louien
Fuhri (the Fuhris). Thus, they became
joint owners in equal undivided
shares. To finance the purchase of the farm, Ms Whitehead and Mr
Riekert, jointly, obtained a mortgage
bond from the fourth
respondent, ABSA Bank Limited (ABSA).
[3]
In August 2013, Ms Whitehead and Mr Riekert separated. At that time,
payments on the bond were in arrears.
Unbeknownst to Ms Whitehead, Mr
Riekert, who was responsible to make payments, had not been doing so.
From 2014 onwards, Ms Whitehead
endeavoured to catch up on the
arrears. On 15 September 2015 Mr Riekert was sequestrated.
Notwithstanding some payments that Ms
Whitehead made on the bond, her
efforts to satisfy ABSA did not bear fruit.
[4]
Eventually, in June 2015, ABSA sought a judgment on the debt and
leave to execute on the bonded property.
It got summary judgment on
24 March 2016, including leave to execute on Ms Whitehead’s
undivided half share in the farm.
[1]
An application for leave to appeal against that order was refused.
The date of that order refusing leave to appeal does not appear
in
the record. More importantly, there is no indication that there was
ever an attempt to procure leave to appeal on petition to
this Court
or to the Constitutional Court. Plainly, the court order of 24 March
2016 remains standing. This is the critical fact
in this case.
[5]
Thereafter, several more earnest efforts were pursued by Ms Whitehead
to clear the debt and satisfy
ABSA. Sadly, all these efforts failed.
ABSA then proceeded to put the farm up in a public sale in execution.
Yolandé and
Shan Naidoo, the eighth and ninth respondents (the
Naidoos), bid for the farm and bought it on 13 September 2017.
The next
logical step would therefore be Ms Whitehead’s
vacation of the farm, by means of eviction, if necessary.
[6]
The several respondents, other than ABSA, did not participate in the
hearing before the court a quo
or in the hearing before this Court.
[7]
A fortnight after the sale in execution had occurred, on 28 September
2017, Ms Whitehead and the
second appellant, Mr Du Preez, thereupon
launched an application.
[2]
The critical proposition advanced in the application was that the
2007 sale of the farm by the Fuhris to Ms Whitehead and Mr Riekert
was null and void, and on that basis to seek several declaratory
orders linked to that allegation. The relief sought was articulated
thus:
‘
(1)
Declaring the sale of property between the applicant, . . . Riekert
(now Insolvent) and the 2
nd
and 3
rd
respondents, dated 28 October 2007, in respect of portion 10 (portion
of Portion 4) of the farm Hilltop 458 Registration Division
JT
Mpumalanga Province, (the property) is hereby declared null and void
ab intio.
(2) That the Title
Deed purporting to transfer ownership of the property to the
applicant and . . . Riekert . . . and all
bonds registered
there against be cancelled by the fifth respondent.
(3) That the warrant
of execution issued by the High court of South Africa Gauteng
division, Pretoria, under case No 37560/2015
be set aside.
(4) That the sale
agreement entered into by the Sheriff of the High Court, Mbombela and
the 8
th
and 9
th
respondents as a result of the
sale in execution of the property on 13 September 2017 be declared
null and void ab initio.’
[8]
The contention of invalidity of the 2007 sale of the farm is based on
an interpretation of s 3
(b)
of
the Subdivision of Agricultural Land Act 70 of 1970 (SALA).
[3]
In short, it was contended that it was unlawful to have bought the
farm in undivided shares without permission from the Minister
of
Agriculture. It is true that the Minister had not given the requisite
permission. It is disputed by ABSA that, upon a proper
interpretation
of s 3 of SALA, non-observance of the section results in the
invalidity of the sale. ABSA also contended that the
appellants were
bound by the court order it had obtained, referred to above. For
reasons which follow, it is unnecessary for this
Court to decide
which perspective concerning the interpretation of s 3 of SALA is
correct.
[9]
The only interest in the property expressed by Ms Whitehead and Mr Du
Preez is based on the considerable
improvements she alleges have been
made to the property and an expectation that they could be recovered;
essentially, she asserts
an improvement lien. To this aspect, I
shall revert.
[10]
The significance of the alleged contravention of s 3
(b)
of SALA for the case that Ms Whitehead and Mr Du Preez sought to
advance lay in the contention that, in consequence of such
invalidity,
there were several material knock-on effects. These
effects were a cascade of allegedly invalid juristic acts: ie, (1)
that Ms
Whitehead and Mr Riekert could not have lawfully become
owners of the farm; (2) that no mortgage bond could validly have been
sought
and granted to them; (3) that the Fuhris were still owners of
the farm; (4) that the summary judgment order of 24 March 2016
was ‘ineffective’; (5) that the writ of execution
pursuant to that order should be set aside by the court; (6) that
the
sale in execution to the Naidoos should be set aside; and (7) that
the transfer of ownership to the Naidoos as registered by
the fifth
respondent, the Registrar of Deeds, must be set aside.
[11]
The application advancing this thesis was dismissed by the court a
quo. It is that judgment which is before this
Court on appeal.
The critical
issue
[12]
The effect of the relief sought is to override or nullify the effect
of the summary judgment order. The critical
and determinative
question for decision is, thus, whether it is open to the appellants
to bring such an application which achieves
that end, the order
itself having been neither rescinded nor set aside on appeal? A
further problem confronting the case advanced
by Ms Whitehead is
peremption.
The existing
order is a barrier to the relief sought
[13]
The conception of the application is that it is proper, in our law,
to seek, through subsequent separate but related
proceedings to
nullify an existing order of court.
[14]
The only means by which an order of a court of first instance is
nullified is by either rescinding the order or
by setting it aside
through a successful appeal.
[15]
The authority of
Gainsford
NO v Tiffski
Property
Investments and Another
[4]
was summoned up in argument to proffer support for the perspective
held by Ms Whitehead and Mr Du Preez. At para 38 of that judgment
it
was stated that:
‘
It
is trite that no legal consequences flow from a void jural act.’
Ergo,
it was contended, once the sale transaction was void, all that was
built thereon must also collapse. However, this case is
unhelpful to
the argument that is advanced. The controversy in
Gainsford
was whether a transaction was a voidable preference for the purposes
of insolvency proceedings. The mechanics of the
Insolvency Act 24 of
1936
provide for a power vested in a court to reverse improper
transactions which occur within six months before the declaration of
insolvency, and thus the
Insolvency Act prescribes
that transactions
that occur during this period are voidable, ie susceptible, upon
examination, to be set aside if good cause is
found to impugn them.
The legislative scheme is not comparable to
s 3
of SALA and the facts
of that matter are far removed from those of the present matter.
[16]
In
The
Master of the High Court, (North Gauteng High Court, Pretoria) v
Motala NO and Others
,
the validity of the appointment of provisional judicial managers was
disputed.
[5]
A Judge had made an order appointing one Mr Hendrik Abram Van Vuuren
to such office. In ostensible defiance of that order, the
Master
appointed the respondent. In subsequent contempt proceedings, it was
held that a Judge had no competence to make such an
appointment
because the power to make such appointment was reserved to the
Master. Because of a lack of lawful judicial competence,
the order
could therefore be ignored because it was a nullity and no contempt
could occur. This predicament is to be contrasted
with a court order
which is made within the scope of a Judge’s competence. In such
a case, the order stands until it is set
aside, assuming there are
grounds for doing so.
[17]
Plainly, neither of these two cases are usefully comparable to the
present matter.
[18]
In this matter, the order granting summary judgment and authorising
execution against the property was made by
a competent court at the
conclusion of fully defended proceedings. The effect of the order was
that the indebtedness of Ms Whitehead
in terms of her liability on
the mortgage bond to ABSA was finally determined as was ABSA’s
right to execute on the property.
What this appeal contrives to do is
to undo that order. That is impermissible. In
Minister
of Home Affairs and Others v Somali Association of South Africa and
Another,
Ponnan JA, reiterated the well-established principle:
[6]
‘
In
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd
para
17 it was put thus:
“
As
Froneman J observed in
Bezuidenhout
v Patensie Sitrus Beherend Bpk
2001
(2) SA 224 (E)
at
229B-C:
“
An
order of a court of law stands until set aside by a court of
competent jurisdiction. Until that is done the court order must
be
obeyed even if it may be wrong (
Culverwell
v Beira
1992
(4) SA 490 (W)
at
494A-C). A person may even be barred from approaching the court until
he or she has obeyed an order of court that has not been
properly set
aside (
Hadkinson
v Hadkinson
[1952]
2 All ER 567
(CA);
Bylieveldt
v Redpath
1982
(1) SA 702 (A)
at
714).”’
Peremption
[19]
It is plain that by reason of the conduct of Ms Whitehead and Mr Du
Preez, peremption operates.
[20]
The relevant facts demonstrating this result are as follows:
(1)
Prior
to the court order of 24 March 2016, neither the validity of the
title deed nor of the bond were questioned.
(2)
During
the summary judgment proceedings, the question of invalidity of the
deed or bond were not raised.
(3)
After
a failed application for leave to appeal against the order, no
further steps were taken to challenge the order. It was
unequivocally,
therefore, accepted as a final order.
(4)
Moreover,
after the order was granted, consistent only with acquiescence in the
effect of the order, several further attempts were
made to reach an
accommodation with ABSA.
(5)
Ms
Whitehead contemplated a scheme in terms whereof she might subdivide
the farm and keep a half portion. On 15 November 2016, she
instructed
her attorneys to propose to ABSA that she pay up the arrears and
obtain the Minister’s permission to subdivide
the farm. ABSA
refused to co-operate, apparently because of the complication of
securing relief from the trustees of the insolvent
estate of Mr
Riekert’s Trustee, the first respondent.
(6)
Ms
Whitehead did not give up. She made enquiries to have Mr Riekert
substituted as a debtor. This effort too failed.
(7)
Ms
Whitehead also put the farm up for sale in the open market in the
hope of obtaining a better price than in a sale in execution.
As a
result, a prospective purchase arose on 30 May 2016 but did not
mature.
(8)
On
7 June 2017, Ms Whitehead’s attorney addressed a letter to ABSA
articulating, for the first time, the notion of the invalidity
of
title and soliciting a settlement. It was claimed that this defect in
title had just been noticed. This is odd because in November
2016, Ms
Whitehead was aware that a subdivision of the farm required
ministerial permission and she must therefore have been aware
of
s 3
of SALA. On 8 June ABSA rejected the proposal.
(9)
On
20 June a further settlement proposal and a payment was made.
(10)
On
12 July 2017 ABSA confirmed a sale in execution would be scheduled.
(11)
On
25 August 2017 the public notice was published advertising the sale.
(12)
On
13 September 2017 the sale in execution took place.
[21]
It is plain from these events that, other than protests, no steps
were taken to halt the sale in execution. Only
afterwards was an
application launched, opportunistically.
[22]
It
is possible to attack a judgment belatedly in circumstances where the
interests of justice require it. Obviously, such
a judicial
intervention is one which is fact-specific. What is necessary to
establish is that the aggrieved litigants have not
by their conduct
demonstrated an acquiescence in the orders granted against them.
Qoboshiyane
NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others
[7]
held thus:
‘
.
. . Where, after judgment, a party unequivocally conveys an intention
to be bound by the judgment any right of appeal is abandoned.
The
principle can be traced back to the judgment of this court in
Dabner
v South African Railways & Harbours
, where
Innes CJ said:
“
The
rule with regard to peremption is well settled, and has been
enunciated on several occasions by this Court. If the conduct of
an
unsuccessful litigant is such as to point indubitably and necessarily
to the conclusion that he does not intend to attack the
judgment,
then he is held to have acquiesced in it. But the conduct relied upon
must be unequivocal and must be inconsistent with
any intention to
appeal. And the
onus
of
establishing that position is upon the party alleging it. In doubtful
cases acquiescence, like waiver, must be held non-proven.”
That
judgment has been consistently followed in this court.’
[23]
At least since shortly before 7 June 2017, the basis upon which the
application was brought was known. Ms Whitehead
waited until after
the sale in execution and on 12 October, at last, launched it. This
belated step was too late to be meaningful.
Does Ms
Whitehead, on her own case, have locus standi to challenge title?
[24]
In any event, the application is itself premised on grounds which,
paradoxically, destroys its viability. If the
contention were to be
correct that the initial sale agreement between the Fuhris and Ms
Whitehead and Mr Riekert was unlawful and
it had the consequences as
alleged, Ms Whitehead would have demonstrated, on her own case, that
she has no locus standi to seek
the relief sought. It was correctly
conceded that on the premise of her case, Ms Whitehead can lay no
claim, whatsoever, to title
over the farm.
[25]
Indeed, the interest which Ms Whitehead invokes in her affidavit is a
different right: that of a lien-holder.
[8]
She relates in her founding affidavit that over a period of five
years since Mr Riekert left, she and Mr Du Preez have made
substantial
improvements to the property which she estimates to be
worth about R900,000. These allegations can be assumed to be accurate
and
well-founded for the purposes of the analysis. If a lien is
proven, Ms Whitehead’s interest can be protected by asserting
it against the world. She has no interest in title to the farm.
[26]
Were ownership to revert to the Fuhris, they would again own it in
undivided shares. This, the crucial invalidity
in title, on the case
advanced about the effect of an absence of ministerial permission,
would manifest again. There is no evidence
adduced about the marital
status of the Fuhris, save for what appears on the 2007 deed of
transfer to Ms Whitehead and to Mr Riekert.
That document records
them as married in community of property. When they acquired the farm
is not recorded. However, it can be
safely inferred from the
information about their identity numbers, that having been born in
1955 and 1957 they were both still
minors in 1970 when SALA was
enacted. They could not therefor have acquired the farm prior to its
effect and had the benefit of
preserved vested rights.
[27]
In short, Ms Whitehead’s case is self-destructive of her locus
standi to seek the relief claimed.
Conclusion
[28]
For all the reasons set out above it follows that the appeal must be
dismissed.
Costs
[29]
The order by the court a quo erroneously alluded to the costs of
three counsel to be allowed. It was a patent error,
as pointed out by
counsel for the fourth respondent in this hearing. It shall be
corrected to provide simply for the costs of one
counsel. The costs
of the appeal ought to be borne by the appellants.
The
Order
The following order
is accordingly issued:
1
The
appeal is dismissed.
2
The
order of the court a quo is set aside and substituted with the
following: ‘The application is hereby dismissed with costs
on
the attorney and client scale, including the costs of one counsel’.
3
The
costs of appeal to be borne by the appellants, jointly and severally,
the one paying the other to be absolved.
____________________
ROLAND SUTHERLAND
ACTING
JUDGE OF APPEAL
APPEARANCES:
For
appellant:
T P Kruger SC
Instructed
by:
Cochrane Attorneys
Incorporated, Nelspruit
Phatsoane
Henney Incorporated, Bloemfontein
For fourth
respondent: A E Bham SC
Instructed
by:
Webber Wentzel, Johannesburg
Kramer
Weihmann & Joubert Attorneys, Bloemfontein.
[1]
Mr
Riekert’s half share was of course an asset in his insolvent
estate and was controlled by the trustees who are collectively
cited
as the first respondent. It was logically destined for sale to meet
the creditor’s demands. The record does not address
what the
position of ABSA was in relation to the claim it logically had
against the insolvent estate.
[2]
Mr
Du Preez is ostensibly Ms Whitehead’s life partner, his given
address being that of Ms Whitehead on the farm in question.
He plays
no further role in the relevant events, and his interest is not
specifically addressed, save that he and Ms Whitehead
claim a lien
over the farm.
[3]
Section
3 provides:
‘
Prohibition
of certain actions regarding agricultural land
Subject
to the provisions of section 2 –
(a)
agricultural
land shall not be subdivided;
(b)
no
undivided share in agricultural land not already held by any person,
shall vest in any person;
(c)
no
part of any undivided share in agricultural land shall vest in any
person, if such part is not already held by any person;
.
. .
(g)
.
. .
unless the Minister has consented in writing
.’
(Emphasis added.)
A
curious circumstance has enveloped this statute. A subsequent
statute which repeals the whole Act has been enacted: the
Subdivision
of Agricultural Land Act Repeal Act 64 of 1998. Section
2 provides that the repeal will take effect when the President, by
Proclamation,
determines a date for the Act to become effective.
Despite the elapse of 22 years since the Repeal Act was enacted, no
date has
yet been proclaimed. There does not appear to be a publicly
stated explanation.
[4]
[2011]
ZASCA 187; [2011] 4 All SA 445 (SCA); 2012 (3) SA 35 (SCA).
[5]
[2011]
ZASCA 238
;
2012 (3) SA 325
(SCA) paras 8 and 14.
[6]
[2015]
ZASCA 15
;
2015
(3) SA 545
(SCA);
[2015] 2 All SA 294
(SCA) para 34.
[7]
[2012]
ZASCA 166
;
2013 (3) SA 315
(SCA) para 3.
[8]
See
15(2)
LAWSA
2 ed para 49: ‘A lien (right of retention,
ius
retentionis
)
is the right to retain physical control of another’s property,
whether movable or immovable, as a means of securing payment
of a
claim relating to expenditure of money or something of monetary
value by the possessor (termed the “retentor”
or
“lien-holder”, while exercising his or her lien) on that
property until the claim has been satisfied.’