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[2020] ZASCA 164
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K2012076290 (Pty) Ltd v Oude Chardonnay Rusoord (Pty) Ltd and Another (642/2019) [2020] ZASCA 164 (10 December 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
no: 642/2019
In
the matter between:
K2012076290
SA (PTY)
LTD
APPELLANT
and
OUDE
CHARDONNAY RUSOORD (PTY) LTD
FIRST RESPONDENT
(IN
LIQUIDATION)
REGISTRAR
OF DEEDS, CAPE TOWN
SECOND RESPONDENT
Neutral
citation:
K2012076290 (Pty) Ltd v
Oude Chardonnay Rusoord (Pty) Ltd and Another
(Case
no 642/2019)
[2020] ZASCA 164
(10 December 2020)
Coram:
NAVSA, ZONDI and MOCUMIE JJA and EKSTEEN and
MABINDLA-BOQWANA AJJA
Heard
:
19 November 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been
published
on the Supreme Court of Appeal website and released to SAFLII. The
date and time for hand-down is deemed to be 10h00
on 10 December2020.
Summary:
Mortgage bond – whether property
to be mortgaged identifiable- court raising issues not raised by
either party - issues identified
by court and on which case decided
without any merit - agreement for property to be mortgaged
established- property clearly identifiable-
defence of fraudulent
misrepresentation unfounded.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Vos AJ) sitting as court of first
instance:
1
The appeal succeeds with costs, including the costs of two counsel.
2
The order of the court a quo is set aside and is replaced by the
following order:
‘
(a)
It is declared that as at 5 December 2015 the appellant is entitled
to the relief sought in paras 2.1, 2.3 and 3 of the
notice of motion.
(b)
The first respondent is ordered to pay the applicant’s costs.’
JUDGMENT
Zondi
JA: (Navsa and Mocumie JJA and Eksteen and Mabindla-Boqwana AJJA
concurring)
[1]
This unopposed appeal
[1]
,
with the leave of this Court, is against an order and judgment of the
Western Cape Division of the High Court, Cape Town (high
court) (Vos
AJ), discharging a rule nisi granted by Saldanha J on 24 July 2018
and dismissing the appellant’s claim with
costs. The rule nisi
called upon Oude Chardonnay Rusoord (Pty) Ltd (OCR), prior to its
voluntary liquidation, to show cause why,
inter alia, it should not
be compelled to do all things reasonably required to cause a first
continuing mortgage bond for an amount
of R2.4 million to be
registered over Erf 39937 Paarl, in favour of the appellant, as
security for the due and proper fulfilment
of its present and future
obligations towards the appellant. The appellants had also sought an
order interdicting the second respondent,
the Registrar of Deeds,
from passing or effecting registration of transfer of Erf 4788 Paarl,
or any property forming part of or
resulting from any subdivision
thereof into the names of any other persons or entities, pending the
return day, and in the event
that the rule be made final, until the
contemplated mortgage bond was registered.
[2]
Vos AJ discharged the rule nisi on the ground that the mortgage bond
was incapable of registration as the property, over which
the first
mortgage bond was sought to be registered, was not sufficiently
described in the relevant deed of sale and that the parties
were not
in agreement concerning the identity of the property sought to be
mortgaged. Furthermore, the court a quo had regard to
regulation 28
(2) of the Registration of Deeds Regulations, which provides that
there shall be no reference in a deed conferring
title to land or an
interest therein, or in a mortgage bond to any building or other
property movable or immovable, which may be
on or attached to the
land. The court a quo held that in the present case there was such a
reference and that a bond could thus
not be registered.
[3]
The facts giving rise to this appeal are briefly the following.
During or about 2012 the appellant, a property developer, purchased
Erf 4788, Paarl (the property) from the liquidator of Aslo Holdings
(Pty) Ltd (in liquidation) which, prior to its liquidation,
had
partially developed the property in terms of the approved plans
(original plans). The original plans entailed the proposed
development consisting of the restoration of the original house and
construction of a further 42 flats. The appellant intended
to
complete the proposed development that Aslo had commenced with, prior
to its liquidation.
[4]
The appellant had, upon enquiry, been advised verbally by the local
authority that a developer’s contribution or Bulk
Infrastructure Contribution Levies were not payable in respect of the
development initially proposed.
[5] On 20 October 2016 the appellant
sold the property to OCR for R6 million excluding VAT. The sale
agreement was subject to the
following suspensive conditions:
‘
CONDITION
PRECEDENT
2.1
This Agreement is subject to the fulfilment of the following
Condition Precedent that by no later than
17h00 on 31 July 2017,
the proposed Development has been approved by the Local
Authority.
2.2
The Parties shall use their reasonable endeavours and will co-operate
in good faith to procure the fulfilment of the Condition
Precedent as
soon as reasonably possible after the Signature Date.
2.3
The Purchaser will be responsible for all costs to obtain approval of
the proposed Development as contemplated in clause 2.1
and the
Purchaser accordingly indemnifies the Seller in respect of any such
costs.
2.4
The Condition Precedent in clause 2.1 has been inserted for the
benefit of the Purchaser, who will be entitled to waive fulfilment
of
such Condition Precedent prior to the expiry of the time period set
out in that clause.
2.5
In the event of the Condition Precedent not being fulfilled or (where
applicable) waived by the date referred to in clause 2.1,
or by such
extended date as may be agreed in writing between the Parties, this
Agreement shall be deemed to be
void
ab initio
and the Parties shall be restored to the
status
quo ante
.’
[6] In terms of clause 3.3.2 of the
agreement the purchase price had to be paid in the following manner:
‘
3.3.2.1
The Purchaser shall pay to the Seller the Purchase Price plus VAT
against Transfer, subject to the simultaneous cancellation
of all
existing mortgage bonds registered against the Property.
3.3.2.2
The Purchaser shall furnish the Conveyancers with an irrevocable,
unconditional bank guarantee or bank guarantees, acceptable
to the
Seller, for the due payment of the Purchase Price within 14
(fourteen) days after being requested to do so which request
will
only be made after fulfilment or waiver, as the case may be, of the
condition precedent contemplated in clause 2.1.’
[7] The property was defined to mean:
‘
1.1.10.1
Section No.1 as shown and more fully described on Sectional Plan No.
SS 41/2015 on the scheme known as THE VINES in respect
of the land
and building or buildings situate at PAARL, IN THE DRAKENSTEIN
MUNICIPALITY, of which section the floor area, according
to the said
sectional plan is 69 (Sixty Nine) square metres in extent;
Together
with an undivided share in the common property in the scheme
apportioned to the said section in accordance with the participation
quota as endorsed on the said sectional plan;
1.1.10.2
Section No. 2 as shown and more fully described on Sectional Plan No.
SS 41/2015 in the scheme known as THE VINES in respect
of the land
and building or buildings situate at PAARL, IN THE DRAKENSTEIN
MUNICIPALITY, of which section the floor area, according
to the said
sectional plan is 69 (Sixty Nine) square metres in extent;
together
with an undivided share in the common property in the scheme
apportioned to the said section in accordance with the participation
quota as endorsed on the said sectional plan;
previously
known as Erf 4788, Paarl, more fully depicted on sheet 1 – 4 of
SG Diagram no 348/2013, attached hereto.’
[8] On 4 November 2016 OCR submitted a
Site Development Plan to the local authority for approval. It
differed substantially from
the original plans and now proposed the
subdivision of Erf 4788 into nine erven, in addition to the existing
dwelling. On 28 July
2017 the local authority approved the
development subject to various conditions laid down by its Civil
Engineering Services department.
The relevant part of the
communication received by OCR when it was informed of the approval of
its development on 28 July 2017
reads as follows:
‘
Based
on the information provided in the application the Development
Contribution payable by the developer is R 1 012 060,00
(Vat incl) as per attached calculation. The value is only valid until
30th June 2017 whereafter a new calculation is required.’
[9]
As a result of this communication and with knowledge of the
development contribution, which would have to be paid it requested
that the parties sign an addendum, which in the words of OCR ‘would
provide [OCR] with a month’s leeway to ensure compliance
with
the letter and to obtain the requisite information regarding the
payment of the BICLs and/or the DCs.’ As a result,
on 31 July
2017 the parties amended the agreement by way of an addendum (the
first addendum).
[10] The terms of the first addendum
were the following:
‘
2
AMENDMENTS
With
the effect of 28 July 2017 the aforementioned Sale of Property
Agreement is amended as follows:
2.1
that clause 1.1.10 is amended by deleting the words “
Property
means
” and to replace it with “
Property’
means Erf 4788 Paarl measuring approximately 2312 square meters,
which as at the Date of Signature fall within the
sectional title
register known as “The Vines’”.
2.2
the date referred to in clause 2.1 is amended to
17h00
on 31 August 2017.’
[11] In the first addendum the parties
replaced clause 3.3.2 of the original agreement with the following:
‘
3.3.2
Payment
of the Purchase Price
3.3.2.1
The Purchaser shall pay to the Seller the Purchase Price plus VAT,
subject to the simultaneous cancellation of all existing
mortgage
bonds registered against the Property, as follows:
3.3.2.1.1
against Transfer the amount of R4 840 000,00 (which
includes the provision for VAT calculated on the Purchase
Price);
3.3.2.1.2
on or before 30 April 2018, the balance of the Purchase Price in the
amount of R2 000 000,00.
3.3.2.2
The Purchaser shall furnish the Conveyancers with an undertaking from
the Purchaser’s attorneys, De Klerk & Van
Gend Inc,
acceptable to the Seller or the Conveyancers, for the due payment of
the amount referred to in clause 3.3.2.1.1 within
14 (fourteen) days
after being requested to do so which request will only be made after
fulfilment or waiver, as the case may be,
or the condition precedent
contemplated in clause 2.1.
3.3.2.3
The Purchaser shall furnish the Conveyancers with an undertaking from
De Klerk & Van Gend Inc, acceptable to the Seller
or the
Conveyancers, for the due payment of the amount referred to in clause
3.3.2.1.2 by no later than the Date of Transfer.
”
2.4
that clause 4.1 be deleted in its entirety and replaced with the
following:
“
4.1
Transfer of the Property shall be given and taken as soon as possible
after the fulfilment or waiver, as the case may be, of
the condition
precedent contemplated in clause 2.1, on condition that the Parties
shall have complied with all the terms and conditions
of this
Agreement. The Parties agree further that Transfer shall be
simultaneously with the transfer of the 8 duplex units in the
Development to third party purchasers, which units have been sold.
The Purchaser shall provide the Seller with documentary proof
of such
sales on request by the Conveyancers.”
2.5
that the following provisions be added to clause 4.2:
“
The
Purchaser’s attorneys will attend to cancellation of the
existing sectional title scheme known as “The Vines”
(SS41/2015) simultaneously with Transfer of the Property at the
Purchaser’s cost.”
2.6
that the following new clause 4.6 be inserted:
“
The
parties agree that the Purchaser’s attorneys will attend to the
registration of a general plan” in respect of the
Property
simultaneously with Transfer of the Property at the Purchaser’s
cost so as to create 10 (ten) new erven.’
[12]
The property was registered into the name of OCR on 30 January 2018
and OCR paid the sum of R4 840 000-00 towards
the purchase
price. OCR thereafter became concerned that it would not be able to
pay the balance of the purchase price amounting
to R2 million by 30
April 2018, in terms of the deadline imposed by the first addendum.
It requested that the agreement be further
amended by extending,
inter alia, the due date for payment of the balance, or the
furnishing of a guarantee for the payment, from
30 April 2018 to 30
June 2018. This was achieved by way of second addendum which the
parties signed on 28 January 2018.
[13] The material terms of the second
addendum were, inter alia, the following:
‘
2
AMENDMENTS
With
the effect from of signature of this Second Addendum by the Party
doing so last in time the aforementioned Sale of Property
Agreement
is amended as follows:
2.1
that clause 3.3.2.1.2 be deleted in its entirety and replaced with
the following new clause 3.3.2.1.2-
“
3.3.2.1.2
on or before 30 June 2018, the balance of the Purchase Price in the
amount of R2 000 000,00 (Two Million Rand).”
2.2
that clause 3.3.2.3 be deleted in its entirety and replaced with the
following new clause 3.3.2.3─
“
3.3.2.3
The Purchaser shall furnish the Conveyancers with an undertaking from
De Klerk & Van Gend Inc, acceptable to the Seller
or the
Conveyancers, for the payment of the amount referred to in clause
3.3.2.1.2 by no later than 31 March 2018.”
2.3
that the following new clause 3.3.2.4 be inserted─
“
3.3.2.4
The Purchaser will be liable to pay to the Seller interest on the
balance of the Purchase Price as contemplated in clause
3.3.2.1.2 at
the Prime Rate per annum from 1 May 2018 to date of payment of the
balance Purchase Price, both days inclusive
.”’
[14] In terms of clause 2.4 of the
second addendum, which gave rise to these proceedings, the following
new clause 3.3.2.5 was inserted
into the agreement:
“
3.3.2.5
The Parties agree that, as security for the due and proper fulfilment
by the Purchaser of its present and future obligations
and
liabilities in respect of the balance of the Purchase Price as
contemplated in clause 3.3.2.1.2 and those of any other nature
in
terms of the aforesaid Sale of Property Agreement, the Purchaser
shall as soon as possible after the Transfer Date register
a first
continuing covering mortgage bond for an amount equal to the said
balance of the Purchase Price and an additional amount
of R400 000,00
(Four Hundred Thousand Rand) to cover costs and expenses over that
portion of Erf 4788 Paarl on which the old
house is currently
situated (the former Sections 1 and 2 The Vines) in favour of the
Seller.”.
. . ’
[15]
At this stage OCR had not paid the local authority the development
contribution of R1 012 060, which was payable
upon the
approval of the plans to subdivide and develop the property.
[16] Pursuant to the terms of the
second addendum, OCR’s attorneys, on 28 March 2018, furnished
the appellant’s conveyancers
with an ‘undertaking’,
the terms of which were the following:
‘
We
herewith undertake to pay to yourselves the amount of R2 000 000,00
against registration of transfer of the sectional
title Units in The
Vines development.
Our
undertaking is subject to the following instances in respect of which
we reserve the right to withdraw or revoke this undertaking
upon
notice to yourselves:
1.
Should the registration of the above transaction(s) be unreasonably
delayed or not be proceeded with; or
2.
We cease to control the funds in the transaction; or
3.
We are by the operation of law prevented from doing so; or
4.
Should it appear that the transaction(s) and the proceeds there from
are subject to any preferent claim by the Commissioner in
terms of
Section 99 of the Income Tax Act No.58 of 1962 as amended.
This
undertaking is neither negotiable nor transferable.’
[17]
The appellant’s conveyancers rejected the undertaking. In
response thereto OCR’s conveyancers, on 7 May 2018 wrote
a
further letter to the appellant’s conveyancers informing the
appellant that OCR had received an offer of about R1.9 million
on Erf
39937, Paarl. OCR offered to pay this amount to the appellant in full
and final settlement of the balance of R2 million
of the purchase
price, but required the appellant to pay the Bulk Infrastructure
Contribution Levies.
[18]
Thereafter on 17 May 2018 and out of the blue, Johan Victor Attorneys
on behalf of OCR, wrote to the appellant’s conveyancers
informing them that the appellant was in breach of the agreement and
further that OCR would not cause a mortgage bond to be registered
over ‘that portion of Erf 4788’ or furnish any
undertaking for the due payment of the balance of the purchase price
whilst the appellant was in breach of the agreement. The alleged
breach was said to be the appellant’s misrepresentation
to OCR
prior to the conclusion of any of the addendums that Bulk
Infrastructure Contribution Levies were not payable to the local
authority or that they had been paid because of the earlier
application for approval of its development by the appellant. This
formed the basis of OCR’s defence of fraudulent representation
and its claim for the reduction of the balance of the purchase
price
by the amount which it contended, constituted damages it had suffered
as a result of the alleged misrepresentation.
[19]
The appellant’s attorneys on 30 May 2018 addressed a letter to
OCR’s attorneys calling upon OCR to provide them
with the title
deed relating to the property by Friday, 1 June 2018 so as to
register a mortgage bond over the property pursuant
to the sale
agreement. OCR ignored the demand and the appellant accordingly
launched the application in the court a quo seeking,
inter alia, the
orders described in para 1 above.
[20]
OCR opposed the application. As I have pointed out OCR sought to
justify its refusal to cause a mortgage bond to be registered
over
Erf 39937 Paarl by asserting that the appellant had allegedly
misrepresented the fact that no Bulk Infrastructure Contribution
Levies were payable to the local authority in respect of the
anticipated development of Erf 4788 Paarl. OCR contended that it had
suffered damages amounting to R 1 699 011.93 as a
result of the alleged misrepresentation and claimed a compatible
reduction of the R2 million outstanding balance of the purchase
price payable by it to the appellant. The effect of OCR’s
defence was that on its own version, it remained indebted to the
appellant for the payment of the sum of R300 988.07.
[21]
The court a quo discharged the rule nisi and dismissed the
application on the ground that the mortgage bond was incapable of
registration as the property, over which the appellant sought to
register a first mortgage bond, differs to the property described
in
the second addendum. It found that ‘neither the deed of sale,
nor the two addendums to the deed of sale, refer to Erf
39937 Paarl.
The second addendum dated 28 January 2018, only refers to ‘that
portion of Erf 4788 Paarl on which the old house
is currently
situated (the former sections 1 and 2 The Vines)…’ In
addition, as stated earlier, the court a quo also
relied on the Deeds
Registration regulations.
[22]
The appeal therefore raises two issues: first, whether the property
over which the mortgage bond was to be registered was sufficiently
described in the sale agreement as amended; and second, whether the
court a quo was entitled to find that the appellant misrepresented
to
OCR that no development contribution levies were payable to the local
authority or had in fact been paid.
[23]
The court a quo misdirected itself by deciding and dismissing the
matter on the basis of points that had not been raised by
any of the
parties.
[2]
Moreover, those
points, as I shall demonstrate, are entirely without merit. The
inadequacy of the description of the property
in the mortgage
agreement was never advanced by OCR as a basis for its refusal to
have a mortgage bond passed over the property.
OCR’s opposition
to the relief sought by the appellant was based on the assertion that
the appellant had allegedly misrepresented
the fact that no Bulk
Infrastructure Contribution Levies were payable to the local council
in respect of the proposed development
of Erf 4788 Paarl. It did not,
however, seek to resile from the agreement but instead sought a
reduction of the R2 million outstanding
balance of the purchase price
by an amount of R1 699 011.93 which it contended it had
suffered as a result of the alleged
misrepresentation.
[3]
[24]
Simply put, the appellant’s claim in the court a quo was for an
order compelling OCR to cause a mortgage bond to be registered
over
Erf 39937 Paarl, as agreed. The question whether the property to be
mortgaged is sufficiently described depends on the interpretation
of
clause 3.3.2.5 of the agreement as amended by clause 2.4 of the
second addendum providing for a mortgage bond and in the light
of the
correspondence between the parties. The recent cases of this Court
make it clear that in interpreting any document ‘the
starting
point is inevitably the language of the document but it falls to be
construed in the light of its context, the apparent
purpose to which
it is directed and the material known to those responsible for its
production.’
[4]
Words have
to be interpreted sensibly so as to avoid unbusinesslike results.
[25]
The provisions of clause 2.4 of the second addendum which amended
3.3.2.5 of the agreement are set out in para [14] of this
judgment.
As regards the context and purpose of the agreement the following
evidence relating to the identity of the property is
relevant.
[26]
Prior to the amendment the agreement defined the property forming the
subject matter of the sale as Section No 1 and Section
No 2 as
described on Sectional Plan No SS41/2015 in the scheme known as The
Vines in respect of the land and building or buildings
situated at
Paarl, in the Drakenstein Municipality, which was previously known as
Erf 4788 Paarl.
[27]
The parties subsequently amended the sale agreement by way of a first
addendum in terms of which the description of the property
was
changed to mean: ‘Erf 4788 Paarl measuring approximately 2312
square meters, which as at the Date of signature fell within
the
sectional title register known as “The Vines”.’ In
the agreement the development to be effected on the property
was
described with reference to the Surveyor-General Plan No D348/2013
approved on 23 December 2013 to mean: ‘8 (eight) duplex
unit
residential development . . .”.’
[28]
That OCR knew full well what the nature and extent of the property to
be developed was, is apparent from the Site Development
Plan it
submitted to the local authority for approval on 4 November 2016. The
application that was submitted was for the subdivision
of Erf 4788
Paarl ‘into 10 portions of plus Remainder Erf 4788 …’
[29]
On 28 November 2017, the local authority approved the Building Plans
for erven 39928 to 39936 and Remainder of Erf 39937. On
the Site
Development Plan Erf 39937 is depicted as the Remainder of Erf 4788.
[30]
It is apparent from this analysis of the evidence of the context and
the purpose of a mortgage agreement that the parties were
under no
illusion as to the nature of the property that was sought to be
hypothecated. The parties intended that OCR would, after
subdivision
and transfer of the property into OCR’s name, register a first
mortgage bond for R2 million (balance of
the purchase price) and
an additional amount of R400 000 over Erf 39937, being a portion
of Erf 4788 after its subdivision.
[31]
It must be remembered that the property was registered into OCR’s
name on 30 January 2018 before the balance of R2 million
of the
purchase price was paid. In terms of the agreement the balance of the
purchase price was payable on or before 30 June 2018
in respect of
which OCR was required to furnish the appellant’s conveyancers
with an undertaking for its due payment by no
later than 31 March
2018. The purpose of the mortgage bond was to secure the payment of
the balance of the purchase price. The
construction of the relevant
clause of the agreement by the court a quo and its other findings,
results in the appellant being
permanently deprived of its security
for its claim for the balance of a purchase price and leaves the
appellant with no security,
in the event of OCR being liquidated, as
happened in this case.
[32]
I now turn to consider OCR’s assertion of fraudulent
representation by the appellant. The court a quo purported to apply
the
Plascon
Evans
principle
[5]
,
which essentially entails that an application can only be granted if
the facts set out by a respondent that postulate a defence
can be
rejected on the papers. Otherwise, it should fail. The court a quo
stated that OCR’s allegation concerning fraud on
the part of
the appellant cannot be said to be far- fetched and thus capable of
rejection on the papers. Then, inexplicably, after
acknowledging a
dispute of fact the court a quo went on to hold positively that the
defence of fraud had been established and that
the balance of the
purchase price ‘is no more than R300 988-10’. This
is the result of deducting the amount for
the Bulk Contribution levy.
But because of its findings in relation to the registrability of the
bond, even in relation to the
reduced amount, the court a quo held
that the application should fail.
[33]
The court a quo failed to take into account that on OCR’s own
version it knew before any of the two addendums were concluded
that
the local authority required payment of the contribution levy. By the
time of the second addendum it was crystal clear that
the payment was
due and that it had not been paid. All that had been communicated,
much earlier by the appellant, was that there
had been an earlier
verbal communication by the local authority, in respect of the prior
development, that it would not be required.
That oral undertaking was
not sustained. There was now a new development proposed and the
developer, OCR, was in terms of the agreement
required to bear the
costs, which would have included the bulk contribution levy. By the
time the first addendum was concluded
it was clear that it had not
been paid and that payment was required. In this case the defence of
fraud raised by OCR was clearly
contrived and fell to be rejected on
the papers.
[34]
The immovable property to be mortgaged was, without more, clearly
identifiable. The parties understood it to be so. The agreement
between the parties clearly indicated an intention to mortgage the
identified property. As between the parties the agreement was
valid
and enforceable.
[6]
In the present circumstances the regulations relied on by the court
below have no application. The court a quo ought to have confirmed
paras 2.1, 2.3 and 3 of the rule nisi. It follows therefore that its
order should be set aside.
[35]
Subsequent to the discharge of the rule nisi on 5 December 2018, two
important developments occurred. First, on 5 February
2019 OCR sold
Erf 39937 Paarl to a third party for R1 million. This was after
an application for leave to appeal had been
lodged by the appellant
on 20 December 2018. The property was transferred and registered into
the name of a purchaser on 17 April
2019. Second, after the appellant
was granted leave to appeal to this Court on 30 May 2019, OCR was
placed in voluntary liquidation
by resolution dated 21 November 2019
and registered with the Companies and Intellectual Property
Commission on 27 November 2019.
[36]
The question therefore is whether it is still competent, in light of
these developments, to grant the relief sought in paras
2.1, 2.3 and
3 of the notice of motion, more so, in view of the fact that the
property in respect of which the relief is sought
is no longer
registered in the name of OCR. The appellant’s purpose with
this appeal was to preserve its security, namely,
the mortgage bond,
to which it was entitled at the time of the approach to the court a
quo and to ensure its position in respect
of the liquidation. Counsel
for the appellant proposed that if we were minded to set aside the
order by the court a quo, that it
be replaced with a declarator valid
as at the date of the judgment, to the effect that it was at that
date, entitled to the orders
sought. The liquidators have indicated
that they would be willing to abide such an order in adjudicating the
appellant’s
claims. I agree with that proposal, which will be
reflected in the order that follows.
[37]
In the result I make the following order:
1 The appeal succeeds
with costs, including the costs of two counsel.
2 The order of the court
a quo is set aside and is replaced by the following order:
‘
(a) It is declared
that as at 5 December 2015 the appellant is entitled to the relief
sought in paras 2.1, 2.3 and 3 of the notice
of motion.
(b) The first respondent
is ordered to pay the applicant’s costs.’
_________________
Zondi JA
Judge
of Appeal
Appearances:
For
appellant: R S van Riet SC (with him A Newton)
Instructed
by: Lombard Kriek Attorneys, Tyger Valley
Honey
and Partners Inc, Bloemfontein
For
respondents: ─
[1]
The
liquidators filed a notice to abide.
[2]
Fischer
and Another v Ramahlele and Others
[2014] ZASCA 88; 2014 (4) SA 614 (SCA).
[3]
R
H Christie
The
Law of Contract in South Africa
7 ed (2016) at 619.
[4]
KPMG
Chartered Accountants (SA) v Securefin Ltd and Another
[2009] ZASCA 7
;
2009 (4) SA 399
(SCA) paras 29-40;
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) para 18;
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013]
ZASCA 176
;
2014 (2) SA 494
(SCA) para 12; and
Norvatis
v Maphil
[2015] ZASCA 111
;
2016 (1) SA 518
(SCA) para 27.
[5]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 623 (A).
[6]
G
Wille,
T J Scott and S Scott
Wille’s
Law of Mortgage and Pledge in South Africa
3 ed (1987); 17
Lawsa
2
ed para 328 and 345.