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 AFRIC A
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 202 4/031287
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED. No
20 May 2025
In the matter between:
PERCY KOK APPLICANT
and
TRACY HILL N.O FIRST RESPONDENT
( in her capacity as duly appointed
provisional trustees in the insolvent
estate of Gcina Thmbelihle Manyaka)
RONALD PETERSON N.O SECOND RESPONDENT
(in his capacity as duly appointed
provisional trustees in the insolvent
estate of Gcina Thmbelihle Manyaka)
MASTER OF THE HIGH COURT , PRETRIA THIRD RESPONDENT
EMFULENI MUNICIPALITY FOURTH RESPONDENT
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THE REGISTRAR OF DEEDS, PRETORIA FIFTH RESPONDENT
MAKHOSONKE SA NGWENI SIXTH RESPONDENT
This order is made an Order of Court by the Judge whose name is reflected herein, duly stamped by the Registrar of the Court and is submitted electronically to the Parties/their legal representatives by email. The Order is further uploaded to the electronic file of this matter on Caselines by the Judge his/her secretary. The date of this Order is deemed to be 2 0 May 2025. .
JUDGMENT
ENGELBRECHT , AJ
Introduction [1] This is an application for the review and setting aside of an agreement of sale
dated 22 March 2022 and the following further relief:
2. It is declared that the agreement of sale dated 28 March 2022 is valid
3. The First and Second Respondents are ordered and directed to comply
with the offer to purchase concluded with the applicant on 28 March 2022. 4. The conveyancers appointed by the Applicant ( hereinafter referred to
as the conveyancers) are authorised and directed to take all steps necessary in order to procure the registration of transfer of ownership in the name of the
Applicant at 2[ …] C[…] Avenue, B […] P[…](“the property”).
5. The First and Second Respondents shall, within 7 days after a demand
is made therefore by the conveyancers.
5.1 Provide the conveyancers with all the required information and
documents for purposes of procuring the registration of transfer of ownership of the property into the name of the Applicant, which information and documentation includes but is not limited to:
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5.1.1 All information necessary to obtain the issue of a clearance certificate
by the Third Respondent;
5.1.2 The issue of a transfer duty receipt for a transfer duty exemption
certificate, as the case may be, by the South African Revenue Services.
. 5.2 Sign or procure the signature of all documents, including but no t limited
to powers of attorneys, authorities to act, affidavit and declarations for the
purposes of the transfer, including such documents as may be necessary in terms of the FICA. 5.3 Generally do all things necessary to be done by the First and Second
Respondents in order to give effect to the transfer of ownership of the Second Respondent’s property and to provide the transfer information and the transfer
documents.
6. In the event that the First and Second Respondents refuse and/or fail to
give effect to the order in paragraph 5 above within a period of 7(seven) days of written demand given to the First and Second Respondents by the conveyancers, then in such event:
6.1 The Sheriff of this Court or his lawfully appointed Deputy shall be
authorised and is directed to sign all transfer documents on behalf of and in
the place of the First and Second Respondents.
6.2 The Fourth Respondent is directed and authorised to provide the
conveyancers on written demand made therefor with all information and
documents with regard to the Second Respondent as may be necessary for purposes of the issue by the Fourth Respondent of a clearance certificate for purposes of the transfer.
7. Costs of the application be paid by any of the Respondents in the event
of any opposition” .
[2] The First and Second Respondents opposed the matter and request ed that
the matter be dismissed with costs on an attorney -client scale, alternatively, Party
and Party on Scale B. The First and Second R espondents also brought a point in
limine as they allege that there are genuine facts in dispute and that the motion court
proceedings are not designed to resolve genuine and bona fide disputes of fact. Therefore, this application should be dismissed on this basis alone.
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[3] The issues to be determined are as outlined in the Joint Practice note:
[3.1] Whether there is a valid agreement of sale between the parties.
[3.2] Whether there are genuine and bona fide disputes of fact that are
incapable of resolution on the affidavits and if so whether the applicant
foresaw their occurrence.
[3.3] Whether the First and Second Respondent s were within their rights, as
trustees of the insolvent estate of Ms. Manyaka, to repudiate the aforementioned sales agreement. [3.4] Whether the Applicant is entitled to claim transfer of the immovable
property notwithstanding the supervening insolvency of Ms. Manyaka.
[3.5] Whether the Applicant can be considered a vulnerable purchaser.
[3.6] Whether the decision to repudiate stands to be reviewed and set aside.
FACTUAL MATRIX [4] On 29 December 2017 the Applicant sold the property to Ms . Manyaka for an
amount of R 600 000,00.
[4.1] On 28 March 2022 t he Applicant purchased the property back from Ms .
Manyaka for an amount o f R 500 000,00 situated at 2[ …] C[…] Avenue, B […]
P[…]k, Vereeniging. There was also an alleged arrangement between the
Applicant and Ms. Manyaka that he will pay the rates and taxes and pay the remainder to Ms Manyaka. The exact agreement verbal is unclear regarding
what was to be paid, when, and to whom.
[4.2] On 31 May 2022, the Applicant sold the property to the Sixth
Respondent for an amount of R 1 550 000,00, who has effected renovations
to the property. The property is presently being used as a student residence.
[4.3] Ms. Manyaka was provisionally sequestrated on 22 August 2022 and
finally sequestrated on 16 November 2022. Applicant alleged that he was unaware of the sequestration.
[4.4] On 24 August 2023 the First and Second Respondents elected to
repudiate the sales agreement entered into between the Applicant and Ms Manyaka on 28 March 2022.
[4.5] On 20 November 2023 an application ( “the previous application”) was
made to this court for an order to review and set aside the repudiation of the
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sales agreement and an order compelling the First and Second Respondents
to take all steps necessary to ensure that the property is transferred to the Applicant.
[4.5.1] The Resolution Trust opposed the previous application, as the First and
Second Respondents were not joined in this application and an answering affidavit was filed and deposed to by the First Respondent. The application was then withdrawn by the Applicant and reinstated on 22 March 2024,
requesting the identical relief.
APPLICANT’S CASE
[6] During the argument, Advocate Mncwabe argued on behalf of the Applicant,
that this application is a declarator. Applicant alleges that the sales agreement is valid as all the requirements o f such a contract have been met. The Applicant further
contended that part payment was tendered towards the sale and seeks to pay the
remainder so that the property can be transferred.
[6.1] It is alleged that the Applicant is a bona fide purchaser and was at all
times unaware of the provisions and final sequestration of the seller, Ms.
Manyaka.
[6.2] Even though the full purchase price has no t been paid to date, the
Applicant alleges that it is still willing to pay the same once this sales
agreement has been declared v alid.
[6.3] Then the Applicant alleges that he is a “ vulnerable purchaser ” as he is
likely to be sued by the Sixth Respondent and therefore needs protection by this court , which needs to investigate and assess whether he is a “ vulnerable
purchaser ” and needs such protection.
[6.4] The Applicant alleges that the harm or prejudice he would suffer far
exceeds the harm the Respondents will suffer as a result of the threat of being sued by the Sixth Respondent. [6.5] During the argument, on behalf of the Applicant, it was conceded by
Advocate Mncwabe that the trustees might have the powers to repudiate, but the question is whether those powers were exercised correctly.
FIRST AND SECOND RESPONDENTS’ CASE
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[7] The First and Second Respondents did file a Notice for security for costs
dated 22 May 2024, where the Applicant provided no security for such costs. Advocate De Oliviera dis putes the allegati on that thi s appl ication is just for a
declarator , as he argued that it is first a review of a decision by the First and Second
Respondent, and only when that is granted, then the application for a dec larator is to
be considered.
[7.1] In this notice for security of costs , reference is made to the previous
application, which was withdrawn although no payment was made for the legal costs of such previous application and that there is a dispute of fact to which the Applicant was alerted in the Answering Affidavit filed in the previous case. [7.2] On behalf of the First and Second Respondents, it is argued that w hen
the estate of the seller of immovable property is sequestrated, an existing contract falls to be determined in terms of the common law or in terms of
section 22 of the Alienation of Land Act. 68 of 1981. In terms of the common
law, an immovable property sold by the insolvent but not transferred passes to the trustee, who cannot be compelled to perform under the sales agreement.
In terms of section 20(1) of the Insolvency A ct, 24 of 1936 the property of the
insolvent vests in the trustee. The Trustee may elect to enforce or repudiate
the sal es agreement .
[7.3] This application is first and foremost a reviewing application and
therefore the Applicant needs to plea some irregularity, procedural or otherwise, in the manner in which the First and Second Respondent have reached their decision. The First and Second Respondents allege that the
Applicant did not set out any such grounds to allow this court to impugn the decision.
[7.4] Concerning the allegation that the Applicant is a “ vulnerable
purchaser ”, the First and Second Respondents deny that he is, as the subject
property is not his residential home, the purchase price was not paid in a year, and the agreement is not an instalment agreement.
[7.5] One major issue derived from the Applicant’s Founding Affidavit is that
it is unclear how much was paid, to whom or for what it was paid or when it was paid.
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[7.6] The Applicant was not authorised to sell the property to the Sixth
Respondent prior to transfer or even payment of the full purchase price.
ANALYSIS [8] In terms of the Notice of Motion, t his application is , firstly, a review application
and only when the repudiation of the sales agreement is granted can this court
consider the further relief on the declaratory relief.
[8.1] Review applications are not concerned with the merits of the decision
maker’s decision but with whether or not the decision was arrived at correctly and appropriately. In Rustenburg Platinum Mines Ltd v Commission for conciliation, mediation and Arbitration
1 it was held that :
“The focus of review applications is on the process and how the decision-
maker came to a decision. The enquiry is not directed at whether the decision was right or wrong, but rather about issues such as (a) the impartiality of the
decision- maker and (b) the admissibility of evidence that he or she takes into
account ”.
[8.1.1] In par 31 of the above- mentioned matter, it is further stated that
“In a review, the question is not whether the decision is capable of being
justified…but whether the decision maker properly exercised the powers
entrusted to him or her. The focus is on the process, and on the way in which
the decision- maker came to the challenged conclusion”.
[8.2] When the estate of a seller is sequestrated, the existing contract falls to
be dealt with in terms of the common law or in terms of section 22 of the Alienation of Land Act 68 of 1981. Under the common law , an immovable
property sold by the insolvent but no t transferred as yet passes to the trustee
in terms of section 20 of the Insolvency Act , 24 of 1936. The Trustee can then
not be compelled to perform under the contract , as it has the discretion to
enforce the contract or repudiate the contract.
[8.3] In the Sarahwitz v Maritz NO matter Case No (81/2012) [2013] it was
held that “In terms of the common law, on sequestration, an immovable property sold
by the insolvent but not yet transferred to the purchaser vests in the trustee.
1 2007(1) SA 576 (SCA) at [31]
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Accordingly, a purchaser who pays a portion of the purchase price, or even
the whole of the purchase price, without receiving transfer of the property before the seller’s insolvency has no real right in the property and only a
concurrent claim against the insolvent estate. ( Mars Law if Insolvency, 9
th
Edition at 227. I
[8.4] In Bryant & Flanaglan (Pty) Ltd v Muller & Another NNO 1977(1) SA
800 ( N) Didcott J stated at 804F – H that:………….
“Whether or not the contract continues to operate depends on a decision of
the trustee, who is allowed and indeed required to choose which shall happen. He is , of course, responsible to the creditors for his choice, but as between
himself and the other party to the contract, the decision is his alone. [8.5] In the Founding Affidavit, various payments were attached, but I agree
with the First and Second Respondents that it is unclear to whom and for what purpose thes e payments were made. It is furthermore also unclear on whether
these payments were related to the purchase price as same is not explained
on the Fo unding Affi davit.
[8.6] Section 22 of the Alienation of Land Act ,68 of 1981, provides an
exception to the common law . The Constitutional Court amended section 1 of
the Alienation of Land Act in the Sarahwitz v Maritz NO and Another
2015(4) SA 491 ( C C) matter when the definition of a vulnerable purchaser
was included
“Vulnerable purchaser” means a purchaser who runs the risk of being
rendered homeless by a seller’s insolvency. ( my emphasis)
[8.7] The relevant portion of section 22 of the Alienation of Land Act , 68 of
1981 reads as follows:
“When the owner of land alienated under a contract becomes insolvent or a
judgment creditor of the owner attached such land by virtue of a writ of
execution, that land shall subject to the provision of the Deed Registries Act, be transferred to any person who purchased that land in terms of a contract or who is an intermediary in relation to that contract and who in accordance with the provisions of subsection (2) makes arrangement for the payment of all costs in connection with the transfer and of an amount equal to:
(a) All amounts owing under the deed of alienation in terms of which that
owner alienated the land or
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[8.8] A “contract” is defined as:
(a) “means a deed of alienation under which land is sold against payment
by the purchaser to or to any person on behalf of the seller of an amount of money in more than two instalments over a period exceeding one year:
(b) includes any agreement or agreements which together have the same
import, whatever form the agreement or agreements may take”.
[8.9] It is apparent from the definition of contract that this refers to a
specified form of deed of sale which makes provision for the payment of the
purchase price in more than two instalments exceeding a year. The Deed of Sale attached to the Applicant’s founding affidavit , is not an instalment
agreement as it stipulates that:
3.1 The purchase price is the amount of R 500,000.00 ( five hundred
thousand rand) ( inclusive of VAT) if applicable, but excluding VAT and
transfer duty, which is being held in the trust account of Stephina Motlhamme Attorneys.
3.2 It is recorded and agreed that this purchase is a cash sale.
[8.10] The Applicant alleges that he is a “ vulnerable purchaser ” and therefore
needs the protection so provided in terms of these sections of the act.
[8.11] In considering whether the Applicant is a “ vulnerable purchaser ”, it is
necessary to examine the facts presented to this court regarding the Applicant as the purchaser .
[8.12] In the Founding Affidavit , the Applicant states that the Sixth
Respondent has a claim for millions of rands as a result of such repudiation but no evidence was attached, that he would suffer harm and that the First
and Second Respondent is out to bully him and therefore he would suffer far
more prejudice than the First and S econd Respondents.
[8.12.1] The First and S econd Respondents answered thereto and indicated
that they dispute the sales agreement entered into between the Applicant and the Sixth Respondent, that he had no authorisation to sell the property to the
Sixth Respondent and that any damages so alleged are irrelevant to the
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question on whether or no t they had the right to repudiate the agreement.
These facts are in dispute according to the First and Second Respondent.
[8.12.2] The Applic ant then filed a Supplementary Aff idavit attaching two
letters from the Sixth Respondent in which they threaten legal a ction against
the Applicant. In the letter dated 31 August 2023, it is alleged that the
Applicant referred to himself in the sales agreement as the “ owner .”’ In this
letter, reference is also just made to major expenses, and no detail is
provided.
[8.13] It is common cause that the subject property is used for student
accommodation and is therefore not the primary residential residence of the Applicant. In the Sarahwitz v Maritz NO and another [2015] ZACC14 matter
the Constitutional Court specifically mentioned the fact that “’ this case is about
homelessness and vulnerability ”.
[8.14] The Applicant states in his Founding Affidavit that he resides at 27
King Fisher, Rabie Ridge, which is not the same address as the subject
property situated at 2 […] C[…] Avenue, B […] P[…] , Vereeniging. There is no
evidence placed before me on how the Applicant is to be “ homeless ” as a
result of selling a property for which the Applicant to date has not paid the full
amount , as alleged to the Sixth Respondent he is the owner and no transfer
was even requested. I can therefore no t find that he is a “ vulnerable
purchaser ” on the papers before me.
[8.15] As shown in the applicable legislati on, the First and Second
Respondents as the trustees , acted within their discretion to repudiate the
agreements and acted to the benefit of the general body of creditors . I cannot
find any irregularity or bias procedurally or otherwise. If funds were paid to Ms .
Mnayaka, the Applicant has a concurrent claim against the insolvent estate.
[8.16] I cannot find any reason why the repudiation of the sales agreement
by the First and Second Respondents is to be reviewed and set aside. As a
result thereof , I do not have to deal with the other relief so claimed by the
Applicant .
COSTS
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[9] What remains for me to consider is the question of costs. I cannot find any
reason why the costs cannot be granted to the successful party.
[9.1] The First and Second Respondent requests costs on an attorney -client
scale alternatively Party and Part Scale B as the Applicant was forewarned
that he had no right to claim the transfer from the Insolvent Estate in terms of
the applicable legislation and caselaw in the legal opinion dated 6 July 2023.
ORDER
[10] Therefore, the following order is made.
[10.1] Condonation is granted for the filing of the Supplementary Affidavit by
the Applicant .
[10.2] The application is dismissed with costs on Party and Party Scale B
including the costs of Counsel .
ENGELBRECHT T
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISIO N
Delivered: This judgment and order were prepared and authored by the Judge
whose name is reflected and is handed down electronically by circulation to Parties / their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines. The date of the order is deemed to be the 20 May 2025.
Appearances:
For the Applicant: Advocate Mncwabe
For the Respondent : Advocate De Oliviera
Date of Hearing: 19 March 2025
Date of Judgment: 20 May 2025