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respondent. In this judgment the parties shall be referred to as they appear in the heading
and in the main judgment.
[2] The seventh respondent applies for leave to appeal against the whole judgment
and order of this court delivered on 29 August 2024. The application is founded on the
provisions of section 17(1)(i) and (ii) of the Superior Court Act, 10 of 20131. In essence,
the seventh respondent contends that the appeal would have prospects of success and
that there are some compelling reasons the appeal should be heard including conflicting
judgment (s) on the matter under consideration.
[3] It is now trite that an applicant in an application for leave to appeal faces a higher
and stringent threshold to demonstrate that there is a measure of certainty that another
court will differ from the court whose judgment is sought to be appealed against .2
[4] I have considered the argument on behalf of both parties including such argument
that I do not specifically highlight in this judgment . I am unable to form an opinion that
another court will differ from the judgment sought to be appealed. In what follows I deal, in
part, with some of the arguments advanced on behalf of the seventh respondent in
support of his application for leave to appeal.
[5] In his first argument the seventh respondent contends that the applicants
consented to the transfer of the property to Southern Spirit Properties 87 Pty Ltd (SSP) –
the second respondent. It is argued that the applicants, acting on behalf of the Trust, gave
a mandate and a power of attorney and appointed Asset Management Specialist Pty Ltd
1 Which provides as follows: “17 Leave to appeal
(1) Leave to appeal may only be given where the judge or judges concerned are of the
opinion that
(a)(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
2 The Mont Chevaux Trust (IT 2012/28) v Tina Goosen (Unreported, LCC case no LCC14R/2014
dated 3 N ovember 2014 ); See Also judgment by the full court in The Acting National Director of Public
Prosecution v Democratic Alliance (unreported, GP case no 19577/09 dated 24 June 2016) at para 25; See Also
SIZAZONKE ELECTRICAL CC AND OTHERS vs ESKOM HOLDINGS LIMITED (unreported, GP Case No. 75781/2013 on
application for leave to appeal) ; See Also Notshokovu v S (157/15) [2016] ZASCA 112 (7 September 2016)
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(AMS) – the third respondent – as their agent the power of substitution and to represent
the Trust to form and register a private company, to draft an agreement of sale, to
administer the proceeds of the sale, to draw up all necessary documentation, take all
steps necessary and sign all documentation to give effect to the mandate and power of
attorney. Accordingly, so it was argued, there was a consent to transfer the property.
[6] This argument loses sight of the fact that th e whole transaction, from the beginning
to the end, was underlaid by fraud and that the applicants did not have any intention to
sell or to transfer their property. Even worse for the seventh respondent, allegations that
the applicants were hoodwinked into selling their property were not denied in the
answering affidavit. Since such allegations stand unchallenged , they must be accepted as
fact.
[7] The second argument by the seventh respondent was that he was a bona fide
purchaser who innocently brought the property for value with no notice of any defect in the
seller’s (the SSP ’s) title. There are at least two problems with this argument. The first is
that SSP never had any title to the property to begin with. Ownership of t he property was
never transferred from the applicants. The issue of defect in title does not even arise. The
second is that during 2018, before the property was purportedly transferred to the seventh
respondent, the second applicant attempted to prevent the sale by instituting legal
proceedings which the seventh respondent actively opposed. Therefore, it cannot be that
the seventh respondent was unaware of the fact that the SSP’s title was in dispute.
[8] The third contention the seventh respondent raised was that if the property was
sold at the judicial sale or by the liquidators of a company in liquidation and the transfer
takes place before the owner of the property institutes rescission application, the property
cannot be recovered from the bona fide purchaser. The right to property is constitutionally
guaranteed. As such the owner of a property is protected against arbitral deprivation. A
time has now come where if the owner of the property was depr ived of their right to
property, the cause or basis for the deprivation m ay be judicially considered and in
appropriate circumstances the right be restored. If the court were to fail to intervene in a
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matter such as this where there is evidence that the right to property was lost through
fraudulent means , that would be to sanction fraud and perpetuate injustice . The other
problem I have with the seventh respondent’s argument in this regard is that since SSP
never acquired any right to the property, it could not transfer any ownership. The inverse
is that the seventh respondent could not acquire any right to the property from SSP who
did not have a title .
[9] The fourth argument was based on the abstract theory of transfer of real right. The
argument was that, if the agreement to transfer a real right was valid, generally, a real
right will pass despite that the cause – the underlying agreement – was defective. In this
matter the underlying agreement was not just defective. It was underlaid and or tainted by
fraud. Fraud vitiated such agreement. See Nedbank v Mendelow 2013 (6) SA 130 (SCA);
Quartermark Investments (Pty) Ltd v Mkhwanazi and Another 2014 (3) SA 96 (SCA) . This
becomes a distinguishing feature between the present matter and the Legator McKenna
Inc and Another vs Shea and Others 2010 (1) SA 35 SCA (the Shea matter) upon which
the seventh respondent placed reliance. In the Shea matter, there was no fraud
involved . In that matter Ms Shea was declared incapable of managing her own affairs
and was place under curatorship by the order of the court. Mr McKenna was appointed
as a curator bonis . Mr McKenna, in his capacity as a curator sold the proper ty belonging
to Ms Shea. She was later declared capable of managing her affairs. Upon this
experience s he instituted proceedings for the return of the property. She contended that
the contract that gave rise to the transfer of the property was invalid because it was
concluded by Mr Mckenna before the Master of the High Court had issued him with
letters of curatorship in terms of Section 72(1)(d) of the Administration of Estates Act, 66
of 1965.
[10] The SCA stated thus:
[22] In accordance with the abstract theory the requirements for the passing of
ownership are twofold, namely delivery - which in the case of immovable
property is effected by registration of transfer in the deeds office - coupled
with a so -called real agreement or ' …'. The essential elements of the real
agreement are an intention on the part of the transferor to transfer
ownership and the intention of the transferee to become the owner of the
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property (see eg Air -Kel (Edms) Bpk h/a Merkel Motors v Bodenstein en 'n
Ander 1980 (3) SA 917 (A) at 922E - F; Dreyer and Another NNO v AXZS
Industries (Pty) Ltd supra at para 17). Broadly stated, the principles
applicable to agreements in general also apply to real agreements. Although
the abstract theory does not require a valid underlying contract, eg sale,
ownership will not pass - despite registration of transfer - if there is a defect
in the real agreement (see eg Preller and Others v Jordaan 1956 (1) SA 483
(A) at 496; Klerck NO v Van Zyl and Maritz NNO supra at 274A - B;
Silberberg J and Schoeman op cit at 79 - 80).
[11] In the present matter there was no intention on the part of the applicants to transfer
ownership of the property to SSP. The transfer of the property was part of the scheme by
AMS. In light of the scheme, even SSP did not have intention to become the owner of the
property. It took transfer just to give effect to AMS’s scheme to deceive the unsuspecting.
In a nutshell, t he agreement that gave rise to the transfer of the property was part of the
fraud on the part of AMS. The consequence of the fraud is that the agreement was void.
[12] The fifth argument on behalf of the seventh respondent was that leave to appeal
should be granted considering that the judgment conflicts with other judgments. I was not
referred to any judgment to demonstrate this point. In the main judgment reference was
made to several other judgments that dealt with the subject matter herein which had
similar facts and had similar outcomes. I could not find such judgments with which the
judgment sought to be appealed conflicts.
[13] The other contention that the seventh respondent raised is that the court erred in
that it set aside irrelevant documents and agreements which relate to third parties with no
relevance to the applicants. As a result , so it was argued, the order is vague and
embarrassing. First, I do not see it the way seventh respondent sees it. However, for the
possibility that someone else may view the judgment and order as vague, I give the
following explanation.
[14] In prayer one (1) of the notice of motion the applicants sought an order as follows:
“1. [t]he below mentioned documentation and agreements or similar referred to
in the Founding Affidavit , and concluded between the First Applicant and
Second and Third Respondents be declared invalid and of no force and
effect and be set aside.
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They listed a number of documents as annexures , from Annexure A further.
[15] Indeed, documents listed in the notice of motion include documents and or
agreements which were apparently entered into between SSP or AMS and third parties. In
the founding affidavit though the applicants explained as follows:
“74. [d]uring 2018, when I realised that we lost the property because of the AMS
scheme and as stated in paragraph 54 above, my investigation led me to
realise that the documents I signed included those mentioned below. I
attach those that I signed and could secure and similar documentation , with
reference to the judgments referred to above, I managed to obtain and
which I signed for the property to be transferred to the second
respondent…”
[16] To my understanding, the applicants are saying that where they could not find or
secure the actual documents that the deponent to the founding affidavit signed as part of
the scheme by AMS, they were attaching examples of such documents as similar
documents that AMS would require their would -be victims to sign to complete the scheme.
I understand the applicants to be saying that they signed similar documents as those
referred to the notice of motion. The fact that the applicants could not secure some of the
documents they actually signed is understandable given the time that has since lapsed
since they were hoodwinked into signing those documents.
[17] The order I made did not necessarily set aside the documents relating to third
parties. This much is clear from the fact that the order does not refer to documents as
annexures as it is the case in the notice of motion . The order simply set aside such
documents as would ordinarily be signed to give effect to the transfer of a property in the
perpetuation of the scheme by AMS.
[18] In any event, even in the absence of that order setting aside the documents , the
appeal does not enjoy any prospect of success particularly in view of paragraphs 2, 3
and 4 of the order.
[19] For all these reasons, I was not persuaded, nor could I form an opinion that the