REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
Case Number: 029047/25
In the matter between:
SAMWOL PROPERTIES (PTY) LTD
(In Business Rescue) First Applicant
JERIFANOS MASHAMBA N.O. Second Applicant
(In his capacity as the duly appointed business
rescue practitioner of the First Applicant)
and
NICOLE SINOVICH ATTORNEYS INC First Respondent
THE SHERIFF OF THE HIGH COURT,
JOHANNESBURG NORTH Second Respondent
THE AFFECTED PERSONS OF
SAMWOL PROPERTIES (PTY) LTD Third Respondent
In re:
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: No
20/03/202 5 _______________
DATE SIGNATURE
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SAMWOL PROPERTIES (PTY) LTD
(In Business Rescue) First Applicant
JERIFANOS MASHAMBA N.O. Second Applicant
(In his capacity as the duly appointed business
rescue practitioner of the First Applicant)
and
NICOLE SINOVICH ATTORNEYS INC First Respondent
THE SHERIFF OF THE HIGH COURT,
JOHANNESBURG NORTH Second Respondent
THE AFFECTED PERSONS OF
SAMWOL PROPERTIES (PTY) LTD Third Respondent
ROBERT J OSHODIN (SENIOR) Fourth Respondent
JUDGMENT
MANOIM , J
1. This case concerns a property transaction that has gone sour. The property is an
upmarket home in the suburb of Bryanston in Johannesburg , situated at 12A Mount
Street ( the property) .The seller, which is also the first applicant, Samwol Property
(Pty) Ltd ( in business rescue) (Samwol) is, as its designation suggests , a company
currently in business rescue , represented in these proceedings by the second
applicant , Jerifanos Mashamba , its business rescue practitioner (the BRP) .
2. The first respondent , Nicole Sinovich Incorporated , is the firm of attorneys
appointed as the conveyancers to do the transfer in respect of the sale. I shall refer
to them from now on as the conveyancer s.
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3. The second respondent is the Sherrif. At one stage his services were required to
perform an attachment but as I later explain this necessity has fallen away.
4. The third respondent is described by the applicant as the affected persons of
Samwol . The deponent says in this category are all persons who are affected
persons in terms of section 128(1)(a) of the Companies Act, 71 of 2008 .
5. This is a tech nically correct definition . Affected persons in terms of the Act comprise
creditors, shareholde rs, trade unions and employees. But although the first
applicant is a company it is not clear what its business is. It owns two properties –
the property that is the subject of this application and a flat . Since the company has
no employees only the first two categories of persons are relevant here as affected
persons . The creditor is Nedbank which is the only major creditor of the company.
Nedbank holds a mortgage over the property. The shareholder is Samantha Pillay
also the sole director of the company. But missing from the founding affidavit is any
mention of the fact that Pillay and her family presently occupy the property. That
fact is central to this dispute.
6. The purchaser is the fourth respondent. He is Robert J Oshdon Snr (Oshdon ) an
American citizen ordinarily resident in Los Angeles. It is common cause that for the
purpose of these proceedings he is to be regarded as a peregrinus .
7. What then is the basis of the dispute? In August 2017 Nedbank obtained an order
for special execution against the property . The r espondents were Samwol , and
Samantha Pillay and her husband Asogren . The record does not show what
happened after Nedbank obtained this order.
8. But in February 2023 Samwol voluntarily placed itself in business rescue.
Mashamba was appointed as the business rescue practitioner. In December that
year a business rescue plan was adopted. One of the provisions of the plan was
that the property was to b e sold. It was initially put up for auction on 29 January
2024 by auctioneers. The best price they could get was R8 858 900.00. This was
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not acceptable to Nedbank. Thereafter the property was marketed and the BRP
received an offer to purchase from Oshdon. This offer was for R 12 162 000 thus
substantially more than that achieved on auction.
9. The offer to purchase (OTP) was accepted by the BRP on 22 August 2024. But
then came the dispute. On 24 February 2025, the conveyancer , acting on the
instructions of Oshdon , gave notice of breach to the applicants alleging that the
property was not vacant despite an undertaking that it would be vacant by the 21
February 2025. The applicants were given 7 days to ensure the property was
vacant failing which Oshdon would cancel the contract and seek reimbursement of
the money held in trust with Sinovich. The BRP’s attorneys wrote back on 27
February to state that there was nothing in the agreement to state that the property
would be vacant on date of tr ansfer. Moreover , the attorneys stated that it was
‘common cause th at the property was occupied as at the date of the agreement.”
10. Oshdon however claims that his local representative was told by the BRP that the
occupiers would leave before registration was effected. This is now the nub of the
dispute. Oshdon contends this was a representation made to him via his local
business partner. This fact is not denied by the applicants. In the founding affidavit
the rather extraordinary remark is made that if the applicants gave any unilateral
undertakings “they hereby withdraw same .” Instead, the applicants focus on the
allegation that whatev er else may have happened the contract contains the sole
memorial of the agreement and makes no mention of the requirement that the
property be vacant.
11. The OTP is, like most property sale agreements , a standard form document with
information either filled in or deleted. In the relevant clause headed ‘occupation ’
the standard form gives two options and requires the inapplicable option to be
deleted. The one option states that occupation will be given to the purchaser on
registration. The other option states that the purchaser acknowledges that he has
been informed that the property is let to tenants , and that the purchase is subject
to the tenants’ rights. But this option has been deleted.
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12. In the founding affidavit t he applicants do not explain who the occupiers are and if
they are still there , why this clause was deleted . It is only on reading the answering
affidavit that one knows what is now common cause - that the occupiers are Ms
Pillay and her family , and that she has been resisting efforts to have her vacate the
property . It is not clear when Oshdon learned of the presence of Pillay and more
importantly when he became aware that she was reluctant to vacate once the
transfer had gone through. Oshdon had done most of the dealings through his local
business partner whom he refers to as Prof. It is possible that Prof was aware the
property was occupied but under the impression it was going to be vacated.
Oshdon says Prof was told by the con veyancer that the property was occupied by
a staff member of Nedbank who would vacate on transfer.
13. When he got wind that the property was not going to be transferred to him vacant ,
Oshdon wrote to the conveyancer giving notice of breach to the seller and in terms
of the OTP giving the seller seven days to rectify the breach. In this case rectifying,
on Oshdon’s version, meant ensuring the property would be vacant on transfer.
The applicants’ attorney wrote back to state the OTP did not require that the
property had to be vacant on transfer.
14. The conveyancer then found herself in the centre of the dispute between the seller
and purchaser. This culminated in a letter she wrote to the BRP on 27 Feb ruary
2025. At this stage, the transfer documents had been lodged with the Deeds Office.
15. In it she expresse d the dilemma of being the conveyancer as she was neither the
agent of buyer nor the seller. She notes that the BRP had told her that the
occupants would have moved out by the time the transfer was ready to be
registered. But she says adopting her neutral stance, that she could not express
an opinion on the undertaking . But she goes on to state that unless the applicants
could ensure vacant possession by 13 March 2025 , she would have no alternative
but to regard the agreement as cancelled and to refund Oshdon the money held in
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trust. The applicants reject this purported cancellation as invalid and assert that
Oshdon has attempted to repudiate the agreement.
16. This letter then became the trigger for the applicant to bring the present application.
The applicants seek an order on the following terms:
a. Interdicting Sinovich from disbursing any funds it holds in trust for Oshdon
to any person;
b. That this interdict operates as an interim order pending finalisation of legal
proceedings to be brought by the applicants by no later than 31 March 2025
in which the applicants would claim specific performance of the transfer of
the property.
c. The Sherrif, who is the second respondent, is authorised to attach the funds.
d. The remaining prayers authorise the attachment of the funds to confirm the
jurisdiction of the court over Oshdon.
17. However, in the answering affidavit Oshdon agree d to submit to the jurisdiction of
the court and appointed his present attorneys as his address for service in South
Africa. The applicants have accepted this service as constituting submission to the
jurisdiction of this court, and so the only remaining prayer they seek (apart from
those relating to urgency and costs) is the one to interdict the conveyancer from
disbursing the funds it holds in trust for Oshdon to any person.
The applicant’s grounds for an interim interdict
18. What then is the prima facie right the applicants rely on for this relief ? The
applicants claim that having not breached the OTP they have a prima facie right to
specific performance which means getting transfer of the property concluded and
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hence payment to them of the purchase price. This is why they seek the order on
the conveyancer not to disburse the funds.
19. As to irreparable harm they allege that if the sale falls through Nedbank will
withdraw from the Business Rescue process and will proceed to liquidate Samwol.
Attached to the founding affidavit is an affidavit from a Nedbank official where she
says this. The applicants go on to say i f the sale fall s through, they will lose out on
the purchase price obtained. (It was also stated as justification for this form of relief
that the attachment was necessary to have jurisdiction over Oshdon since he is a
peregrinus and has not submitted to the court’s jurisdiction , but this concern has
since been overtaken by their acceptance of his undertaking during the hearing of
this application)
20. In it written h eads of argument the point is made by the applicants’ coun sel, that
Oshdon was not entitled to a warranty that the property was free of occupants but
that nevertheless it will be vacant once transfer takes place. It’s not clear where
this comes from since none was offered to the conveyancer after the breach letter
was sent. Instead during the breach period, the attorney for the applicants advised
that there was no breach to remedy because Oshdon was not entitled to transfer
of a vacant proper ty because the OTP did not provide for this.
21. Oshdon makes much of what he considers a fraud perpetrated on him by the BRP
and Pillay referring to their actions as being in breach of the doctrine of clean hands
and instead as ‘dripping with blood .’ But his poetic hyperbole aside , it is difficult to
account for the behav iour of the applicants. Why was an undertaking not given
when the occupier was not a third party but the sole director of the Samwol. Why
is this mystery over the occupant perpetuated in the application such that the Pillay
family is never revealed as being the occupiers ?
22. What does emerge from an annexure to Oshdon’s answering affidavit is a curious
letter from Pillay to the BRP dated 25 February 2025, in which she castigates him
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from selling the property and insists on her family’s rights to be afforded their rights
in terms of PIE.
23. This letter says Ogdon was given to him by the estate agent. Little wonder then he
became anxious of the prospects of him getting vacant occupation any time soon.
No mention is made of this in the replying affidavit.
24. In its heads of argument, the then counsel for the applicants contended that
Oshdon was not a party to the litigation as he did not have a legal interest in the
outcome of the application. This point was not pursued by counsel who appeared
in the hearing, correctly so, and I therefore do not need to consider it further.
25. So why do the applicants want the interim interdict? They say this interdict is
required pending an action or application they intend to seek against Oshdon for
specific performance. They say they need to preserve the purchase payment ,
which is held in the conveyancer’s trust account , so that if they succeed in their
claim for specific performance , they can have the transfer effected . They claim they
acted expeditiously once the conveyancer had written the letter on 27 February
2025 ( they launched this application on 3 March 2025) . Furthermore, to deal with
the other leg of urgent applications they claim they will not get redress in due
course because Oshdon is a peregrinus . If he is repaid Nedbank will run out of
patience and apply for the liquidation of Samwol. An affidavit from Nedbank to this
effect is attached.
The applicant’s basis for meeting the requirements for an interim interdic t.
26. The applicants maintain that they have a prima facie right to the funds. Oshdon is
only entitled to occupation on transfer. On that date he is entitled to transfer.
However, since the OTP does not warrant him vacant occupation the fact that the
Pillays may still occupy the property after date of transfer , does not mean the
applicants are in breach of the OTP , and they are therefore entitled to enforce it .
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27. The irreparable harm apprehended is not any behaviour of Oshdon. It is that
Nedbank will withdraw their support for the business rescue and proceed to
liquidate Samwol.
28. The balance of convenience and lack of any other remedy are dependent on the
same facts from the applicant’s point of view. If they succeed in getting an order of
specific performance, they will presumably have to sue in the United States to
recover the purchase price. Similarly, they argue , this would be the position for any
claim for damages. The only security for them is to interdict the conveyancer from
transferring the funds back to Oshdon.
29. Whilst acknowledging that Oshdon will not have access to his funds whilst the
litigation is pursued, the applicants argue that since he is earning interest on his
money and he is a wealthy man , the prejudice to him is outweighed by the prejudice
to them if they cannot recover the money.
30. Oshdon opposes the application both on the grounds of urgency and the merits.
Analysis
Urgency
31. The applicants argue that the letter from the conveyan cer dated 27 February 2025
was the trigger for urgency in this matter. In that letter the conveyancer indicated
that unless Oshdon and the applicants reached some agreement , or she received
a court order, she would regard the agreement as having been cancelled , and
refund Oshdon . Counsel for Oshdon suggested that the applicants could have
acted sooner. I do not agree. This was the final moment when it became apparent
that the funds would be returned . It was the correct time for the applicants to bring
the application. Nor did they wa ste any time. The applica tion was brought six days
later on 3 March 2025 .
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32. More controversial is the second aspect of urgency as required by Rule 6(12) (b) of
why they could not get relief in due course. The applicants argue that they cannot
if the money is repaid to a purchaser who is a peregrinus. Since this issue is
factually similar to whether they have no alternative remedy , I discuss this later
when I discuss the merits.
a. Merits
33. The applicants argue that the terms of the OTP clearly from its text give them a
prima facie right. But the occupation paragraph in the OTP has been carelessly
completed. There are two option clauses in the standard form contract one of which
has been deleted.
34. The clause that has been retained states that occupation will be given on date of
transfer. It then has a further sentence which states that should the registration
date not coincide with the occupation date , then the party enjoying such
occupation , shall pay to the party having registration , occupational rental. There is
then a blank space on the form left to insert what this amount is . But on this OTP
no amount is inserted here ; instead, the letters N/A have been inserted in
manuscript . The applicants argue that this simply means that whoever was in
occupation after transfer date did not have to pay occupational rental.
35. In the printed form beneath this occupational rental clause, is the second clause ,
which takes the form of an acknowledgment by the Purchaser that he has been
informed that the property has been let to tenants. But t his paragraph has been
deleted . What then is the combined effect of the insertion of the letters N/A in the
occupational rental clause, and the deletion of the tenant clause?
36. It is an equally fair reading of the OTP thus amended, that the parties understood
that the purchaser would get vacant possession on transfer and hence the clause
about occupational rental as a whole was rendered not applicable by the insertion
of the N /A, as opposed to this simply meaning an agreement that no amount had
been set for occupational rental. But when combined with the deleted provision
concerning an acknowledgement about the tenant , this favours the interp retation
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of Oshdon , that the property would be vacant on date of occupation which
coincided with the date of registration.
37. Nevertheless, I agree with counsel for the applicants , that in terms of modern
contractual interp retation, the text enjoys no priority over context and purpose with
the latter two not before me in application proceedings.1 I am therefore willing to
allow for the applicants , that textually , they have established a prima facie right.
But gi ven the textual ambiguities , it is a weak one. Consequently, as the case law
suggests the other elements required for an interim interdict need to be strong.
This is best summarised by Van Der Linde J in Resilient when he stated :
"The approach approved then by these authorities is that 'a prima facie right,
though open to some doubt' conveys that the strength of the right is allowed to
fluctuate from strong to weak: if it is strong, the other requirements for an interim
interdict m ay be weak; if it is weak, the other requirements for an interim interdict
may be strong.”2
38. The problem for the applicants is that having a weak prima facie right they are not
strong on the other requirements . Take the next issue of irreparable harm. It needs
to be understood what is at stake here. The applicants are not about to lose the
property. What they apprehend is that Nedbank will act on its threat and force the
company into liquidation. But even if the y do so , what is lost at worst is the
difference between the price that Oshdon paid for the property and what might be
achieved if it is sold at auction . On the assumption that this price might be lower ,
which is a possibility rather than a certainty, the loss is that of Nedbank. It can
choose to continue the business rescue or induce the process of liquidation. But
doub tless Nedbank will do its sums and decide the best way forward. A huge loss
or even a loss at all is not inevitable as the company still owns the property.
1 See for instance the well -known cases of Natal Joint Pension Fund v Endumeni Muncipality 2012 (4)
SA 593 (SCA) paragraph 18 , and Capitec Bank Holdings Ltd v Coral Lagoon Investments 194 (Pt y)
Ltd and Others 2002 (1) SA 1 00 (SCA) at paragraph 25.
2 Resilient Prop (Pty) Ltd v Eskom Holdings SOC Ltd 2019 (2) SA 577 (GJ) at [52] .
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39. Nor should one have any sympathy with the BRP who has failed to disclose
important fact s concerning the continuing occupation of Ms Pillay and her family;
facts that only emerged in the answering affidavit . The BRP did not play open cards
with the court. Nor if any of the residue of the company is due to Ms Pillay, should
one have any sympathy for her. Her failure to move out of the property is the reason
the transaction has fallen into jeopardy. She is still clearly unwilling to move as an
angry letter fro m her to the BRP dated 18 February 202 5 reveals. This letter was
not disclosed by the BRP but by Oshdon who had received it from the estate agent.
In it Pillay threatens that if she is evicted, she will bring a spoliation action as well
as “associated criminal complaints.” But it is Pillay who initiated the Business
rescue process clearly calculated to ensure that it was the BRP , not Nedbank , who
would then take charge of the sale of the house. But then when a buyer was found
she actively sabotaged a successful transfer by refusing to vacate.
40. Nor does the property represent a business despite being owned by a business in
business rescue. This is clear from none other than Pillay herself its sole director
who in the same letter to the BRP states:
“This, further, records for court and legal purposes that although the property is
owned by Samwol Properties (Pty) Ltd (hereinafter referred to as the company),
the company is a holding mechanism since the property houses a family and
serves no other purposes. ”
41. Thus, the representation that the BRP had made that the property would be
vacated by the 21 February was one he must have known at the time was
impossible , given Pillay’s recalcitrance.
42. Relying on these facts Oshdon’s counsel suggested that there had been an abuse
of process and on that consideration alone , the interdict should be dismissed. I do
not need to go as far as this, but I am unconvinced by the case made out on
irreparable harm or the balance of convenience.
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43. On the latter , the fact that Oshdon is a man of means should not be held against
him. If the interim relief is granted, he will be in a situation where he will neither
have access to the property nor a large sum of money , for some time . Given these
considerations the balance of convenience is about even.
44. Finally, the applicants still have the remedy of a damages claim . If the property has
to be sold again the damages will be the differences between what they sold it for
and what they could have got from Oshdon ; assuming of course that this amount
is lower . If it is , the amount would be readily determinable, and this distinguishes
this case from those where damages are not easily determinable.3 Granted
recovery may be expensive to pursue but it is not impossible. Oshdon does state
he has other investments in South Africa, and he has submitted to the court’s
jurisdiction. The case was originally premised on the assumption that attachment
was needed to confirm jurisdiction. Whilst not the only reason for the interdict , it
has now fallen away as part of the justification.
45. In conclusion then whilst I find that the applicants have made out a prima facie
right, it is a weak one . Had the applicants made out a strong case on the other
elements, irreparable harm, the balance of convenience and no other remedy , they
might have succeeded. But they have not. The case is weak on all the other
elements as I have discussed. The application is for this reason dismissed.
46. As for costs , both counsel consider ed
47. that the case merits costs of counsel on scale C. I would agree. Oshdon was
represented by both senior and junior counsel. However, I do not consider that the
case warranted either senior counsel or two counsel. It was however sufficiently
complex to justify counsel’s costs on scale C , which is what I have allowed.
3 See Herbstein and Van Winsen Civil Practice of the High Courts and the Supreme Court of Appeal
(Fifth Edition) Jutas, page 1469 , footnote 100 and the cases referred to there.
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ORDER
1. The application is dismissed.
2. The applicants jointly and severally are liable for the costs of the fourth
respondent on a party and party scale with cost of one counsel on scale C .
______ ____________
MANOIM J
JUDGE OF THE HIGH COURT
JOHANNESBURG
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For the Applicant: Adv L Hollander instructed by Michael Marshall
Attorneys (with heads of argument prepared by Adv. L. Acker)
For the F ourth Respondent: Adv D.C Mpofu SC and Adv M. Seti -Baza instructed
by KMNS Inc
Date of hearing: 14 March 2025
Date of Judgement: 20 March 2025