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 AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )
Case numb er: 1819/2020
In the matter between:
ANNA JOHANNA MEYER Plaintiff
and
NICOLAS LESLIE MEYER First defendant
NICOLAS LESLIE MEYER N.O. Second defendant
THE REGISTRAR OF DEEDS Third defendant
THE MASTER OF THE HIGH COURT Fourth defendant
THE COMPANIES AND INTELLECTUAL
PROPERTY COMMISSION Fifth d efendant
JUDGMENT DELIVERED ON 23 JUNE 2025
VAN ZYL AJ :
Introductio n
1. The psalmist David had occasion to muse on the value of goodwill between
brothers: “… how good and how pleasant it is for brethren to dwell together in
unity! It is like the precious ointment upon the head, that ran down upon the
beard, … to the skirts of his garment ; ...”1 Sadly, the present case has nothing
good or pleasant about it. I t entails a bitter dispute between a mother and one
of her sons , and there is discord amongst the sons.
2. The plaintiff, Mrs Meyer, and her then husband, Mr Johan Meyer,2 had five
sons, namely Nico, Johan Jnr, Anton, Marius, and Henk.3 This action
involves a dispute between Mrs Meyer and her eldest son, Nico. She claims
the following:
2.1. By way of claim A , a declaration that two agreements for the sale of
certain immovable propert ies are void . She therefore claims the setting
aside of the agreements and the transfers that followed, and the setting
aside of the dissolution and winding -up of a company named Rotsvas
Ondernemings (Pty) Ltd (“Rotsvas”).4
2.2. In the alternative, by way of claim B, Mrs Meyer seeks a statement and
debatement of account on the basis that Nico stood in a fiduciary
relationship to wards her, and is obliged to render an account. She
seeks payment of what is due upon debatement , and/or restitution of
the two immovable properties that she claims Nico appropriated.
1 Psalm 133 from the Bible (King James version).
2 Mr and Mrs Meyer divorced in 198 6, and Mr Meyer has since passed away.
3 I shall, for the sake of convenience, refer to the sons by their first names.
4 Registration number 1969/010 570/07. The company’s name was later changed to AJM
Ondernemings (Pty) Ltd.
3. The properties in question are the dwelling house situate d at 2[...] F[...] Street,
Paarl (Remainder of Erf 9[...], Paarl), and the residential block of flats situate d
at 3[...] M[...] Street, Paarl (Erf 1[...], Paarl). It is common cause that these
properties were previously owned by Mrs Meyer and Rotsvas respectively. It
is also common cause that the house was transferred to and registered in the
name of Nico’s family trust, the Courtrai Trust,5 on 23 October 2015 . The
block of flats was transferred to and registered in the name of Nico's business
trust, the Rhemco Trust,6 on 16 November 2015.
4. These transfers occurred pursuant to a n agreement of sale entered into
between Mrs Me yer and the Courtrai Trust on 31 August 2015, in terms of
which Mrs Meyer sold the Courtrai property to the Courtrai Trust for the sum
of R1.8 million , and a n agreement of sale concluded between Rotsvas and
the Rhemco Trust on 31 August 2015, in terms of w hich Rotsvas sold the
block of flats to the Rhemco Trust for the sum of R3 million.
5. As indicated, Mrs Meyer’s main claim in respect of these properties (claim A)
is for a declaration that the "agreement underpinning the sale and transfer" of
each property be declared void, and for the re -transfer of the properties to
herself and to Rotsvas. Her cause of action for this relief is essentially based
on the alleged fraudulent misrepresentations by Nico and the late Mr Jacques
Francois de Villiers (“De Villiers ”) to the effect that the conclusion of the
agreements were in Mrs Meyer’s best interest . Mrs Meyer purported to
cancel the agreements of sale by means of the particulars of claim as a
consequence of these fraudulent misrepresentations.
6. Nico denies havin g made the se misrepresentations. He further avers that he
and his wife, Sheila, assisted Mrs Meyer in the management of the flats and in
other business affairs because they loved her , but did so under her control
and supervision, and with her authority. At the trial Nico testified that there
was an agreement between him and Mrs Meyer to the effect that he (being in
control of the two trusts) would pay the purchase prices in respect o f the
5 IT001947/2015.
6 IT001945/2015.
properties in instalments (in particular in relation to the dwelling house) so as
to provide Mrs Meyer with a monthly income.
7. The latter defence (that it was agreed between him and his mother that
payment would be in instalments rather than on regis tration of transfer) was
raised for the first time in an affidavit in an interlocutory application instituted
prior to the hearing of the action at Mrs Meyer’s behest . The defence was
however dealt with in detail in the course of oral evidence at the tria l. Counsel
for Mrs Meyer complained that it had not been pleaded but argued that, in any
event, it holds no water as it violates the parol evidence rule.7
8. I am mindful, in relation this unpleaded defence, that the Supreme Court of
Appeal (“SCA”) held as follows in Minister of Safety and Security v Slabbert:8
“A party has a duty to allege in the pleadings the material facts upon which it
relies. It is impermissible for a plaintiff to plead a particular case and seek to
establish a different case at the trial. It is equally not permissible for the trial
court to have recourse to issues falling outside the pleadings when deciding a
case.”
9. The SCA qualifi ed9 this statement by pointing out that:
“[12] There are, however, circumstances in which a party may be allowed to
rely on an issue which was not covered by the pleadings. This occurs where
the issue in question has been canvassed fully by both sides at the trial.
In South British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd, this
court said:
‘However, the absence of such an averment in the pleadings would not
necessarily be fatal if the point was fully canvassed in evidence. This means
7 With reference to KPMG Chartered Accountants v Secur efin Ltd 2009 (4) SA 399 (SCA) para
39. See also University of Johannesburg v Auckland Park Theological Seminary and another
2021 (6) SA 1 (CC) paras 88 -92.
8 [2010] 2 All SA 474 (SCA) para 11.
9 Minister of Safety and Security v Slabbert supra para 12.
fully canvassed by both sides in the sense that the Court was expected to
pronounce upon it as an issue'. ”
10. In the present case, the defence was squarely put forward in the interlocutory
application, and dealt with at that juncture as well as in evidence at the trial . It
was fully argued. As such, it became an issue between the parties upon
which they expect this Court to pronounce.
11. The hearing of the evidence was emotionally fraught. Mrs Meyer is 86 years
old, and the emotional toll of the case , her failing memory, and her despair in
the midst of the situation was clear when she testified. She testified at length,
and was not a good witness. Her counsel nevertheless argued that key parts
of the factual narrat ive brook ed no real dispute , and that those facts
demonstrate that Mrs Meyer is entitled to the relief she seeks, whether in
relation to claim A or claim B .
12. I proceed to discuss the se claims in the context of the evidence, as well as in
the light of a spe cial plea of prescription raised by Nico.
The plaintiff’s case as it appear s from the evidence furnished on behalf of Mrs
Meyer
13. There were various discrepancies throughout the evidence between what had
been stated in the interlocutory application and the oral evidence eventually
led, both in relation to Mrs Meyer’s and Nico’s evidence. The oral evidence
itself, especially Mrs Meyer’s, teetered betwe en various different versions. Her
locus standi in respect of the claim for the retransfer of the block of flats to
Rotsvas ( eventually known as AJM Ondernemings) was not clarified. In the
leading of evidence and in argument, h er counsel placed emphasis on
particular events over the years leading up to the sale of the properties to
bolster her allegations of fraud . A picture of the situation giving rise to these
proceedings nevertheless presented itself upon consideration of th e evidence
in totality . It seems to me that in the present case a bird’s eye view is the
better approach, because it is easy to find fault with particular and essentially
innocuous past events when looking at them through glasses focused on
finding fraud .
14. The broader background to this matter is common cause. Mr Meyer Snr was
initially the sole shareholder in Rotsvas, holding 101 shares. In 1977 Rotsvas
completed the construction of the flats.
15. It appears from the founding affidavit in the interlocutory application to which I
have referred earlier, that Mr Meyer Snr transferred 50 of his shares to his
sons at some point, with each son receiving 10 shares. On 28 August 1986,
Mr and Mr Meyer were divorced. In terms of the divorce settlement Mr
Meyer’s 51 shares in Rotsvas were transferred to Mrs Meyer. Their sons
retained their shares. It was also agreed that Rotsvas would not sell the flats
to third parties (“ buitestaanders ”) prior to Henk, their youngest son, turning 22
years of age. Accordi ng to Mrs Meyer, the intention was that the shareholding
in Rotsvas would eventually be bequeathed to their sons in equal shares.
16. Some years later Mrs Meyer purchased her sons' shares for R20 000.00 per
share. She testified that she did this to assist the m financially. Counsel argues
that this made sense because they were to inherit the flats in any event. Mrs
Meyer was thenceforth the sole shareholder in Rotsvas.
17. On 27 September 1999 Mrs Meyer caused the A nnette Meyer Fami ly Trust to
be registered . She a nd her five sons were the trustees of the family trust, as
well as the beneficiaries. The initial letters of authority were issued in
September 1999. Johan Jnr resigned as a trustee and beneficiary of the
family trust in June 2003 due to a disagreement wi thin the family, primarily
between him and Nico. Shortly thereafter, also i n June 2003, Nico, Anton, and
Henk resigned as trustees, but for administrative rather than emotional
reasons. Marius remained on as a trustee.
18. There was much argument from Mrs Me yer’s side about Nico’s alleged
attempts over the years t o get rid of Marius as a trustee – the argument was
that Nico had planned taking control o f Mrs Meyer’s affairs long before
concluding the property transactions, because dealing with Mrs Meyer instead
of with Marius would be easier for Nico. Mrs Meyer’s concession in relation to
when the possib ility of the sale of the properties first arose (I refer to her
evidence below), however, took the sting out of th is argument.
19. There was some dispute during the evidence about who the owner of the
Rotsvas shares was at the times relevant to this action. Counsel for Mrs
Meyer suggested to Nico in cross -examination that the shares had been held
by the Annette Meyer Family Trust, on the basis of the Trust’s financial
statements for the year ended 28 February 2010, which reflected that the
Trust held shares in Rotsvas. Mrs Meyer herself however testified that she
was under the impression that she had been the owner of the shares in
Rotsvas.
20. Nico was emphatic that the shares in Rotsvas had always been held by Mrs
Meyer, and never by the Annette Meyer Family Trust. The financial
statements of the Trust to which counsel referred was, so he testified, merely
a draft (a "mock up ”) which had been prepared in order to consider "hoe die
state sal lyk as Rotsvas Ondernemings binne in die Annette Meyer Familie
Trust is" [“how the statements would look if Rotsvas Onderne mings was in the
Annette Meyer Family Trust”]. Nico had searched for documents, at Mrs
Meyer’s request, to confirm that she was (and had always been) the
shareholder of Rotsvas. He could not find any document that proved the
contrary.
21. In February 2011 Marius emigrated to Canada, and on 6 May 2011 Mr Meyer
passed away. It was about this time that Nico took over the management of
the flats. He also started assisting Mrs Meyer in other aspects, fulfilling the
role that Marius used to play. This was the start of what Mrs Meyer described
as Nico’s taking control of her financial and business affairs – to her detriment
and to his benefit.
22. In April 2013 Nico drafted a letter in Mrs Meyer's name on behalf of Rotsvas.
In the letter he asked the company’s auditors, Jackson Neethling Chartered
Accountants (“Jackson Neethling”) to hand him their file on Rotsvas. Anton
testified that he remembers f etching the file from Jackson Neethling and
giving it to Nico. Counsel for Mrs Meyer argues that, while this letter is on the
face of it innocuous, it must be seen in the bigger context of what Mrs Meyer
regards as Nico’s efforts to control her business a ffairs by, amongst other
actions, making himself the custodian of any relevant documentation. Again,
given Mrs Meyer’s evidence ultimately in respect of how the sale of the
properties came about, the Rotsvas argument does not take Mrs Meyer’s
case much fu rther.
23. I have already mentioned that the two properties were sold and transferred to
Nico’s trusts over the period August 2015 to November 2015. According to
Nico (and subse quently conceded by Mrs Meyer), Nico and his wife Sheila
informed Mrs Meyer that they were considering emigrating to New Zealand
around the beginning of 2015 . As will become clear from a discussion of the
evidence, Mrs Meyer initially testified that their plans were revealed to her
only after the conclusion of the property transaction s, because Nico wanted to
be sure that he had control of the properties prior to leaving the country.
24. I point out at this juncture that it was a recurring theme in Mrs Meyer’s
evidence that, over the years, she had signed documents placed before her
by Ni co without applying her mind to the contents of the document in
question. Mrs Meyer's testimony was not a picture of clarity, but she was very
adamant about this. Whether her evidence in this respect is to be accepted
will be considered later. I gained the impression while Mrs Meyer testified that
she was rather too adamant about the abdication of her responsibilities when
it came to the signing of documents.10
25. Be that as it may, in her examination -in-chief Mrs Meyer testified in relation to
the dwelling house and the block of flats that she had never intended to sell
them to Nico. She did not know that what she had signed on 31 August 2015
were in fact agreements of sale. When her counsel asked her whether she
10 “The lady doth protest too much, methinks ” (Shakespeare Hamlet Act III, Scene II ).
remembered how and where the trans actions were concluded, she replied:
"Ek kan niks daarvan onthou nie" [“I cannot remember anything about it”].11
26. Mrs Meyer’s inability to recall – or her complete absence of knowledge of - the
salient details surrounding her conclusion of the agreements became a
second refrain throughout her evidence.
27. Mrs Meyer was asked during her examination -in-chief whether she was able
to recall the transactions and, if so, to explain how it came about that she had
signed the agreements of sale. Her reply was that she had no knowledge
thereof, and that she had not been interested at the time (whether in the
nature of the transactions or in the documents that had been presented to her
for signature), because Nico was in complete control of her and of every thing
that she had owned. Whatever Nico requested her to do, she did: "… as Nico
sou vir my ges ê het gaan spring in die see in dan sou ek seker dit o ok gedoen
het" [“… should Nico have told me to go jump in the sea I probably would
have done it”] .
28. In the interlocutory application Mrs Meyer alleged that on 31 August 2015 she
was presented with agreements of sale in respect of the house and the block
of flats at the offices of Abrahams & Kiewitz Attorneys . It is common cause
that there were various drafts of the agreements prior to signature of the final
ones. She signed the agreements, but did not know what she was signing
(and was not interested in knowing because she trusted Nico) . Her versi on
during her evidence -in-chief and in the interlocutory application was that she
only established the correct facts (being that she had been induced by Nico’s
fraudulent conduct to sell the properties to him ) in November 2019 after
receiving a telephone c all from the Swellendam Municipality in relation to the
transfer of another property which is no longer relevant to these
proceedings .12
29. There is, at the outset, a contradiction between this version and the
11 The translation of the Afrikaans into English is mine throughout this judgment.
12 The so -called Malgas property .
averments pleaded in Mrs Meyer’s particulars of claim . Her cause of action in
the pleadings is based on fraud, and the crux of her case as pleaded is that
Nico and De Villiers had represented to her "that the transactions were in the
best interest of the Plaintiff ”. The pleaded version is therefore that Mrs Meyer
knew that she had concluded sale agreements in respect of the properties,
selling them to Nico’s trusts . She concluded these transactions because she
believed, based on the misrepresentations of Nico and De Villiers, that the
transactions would be in her best interest. Her oral version of total ignorance
in relation to the nature of transactions is therefore at loggerheads with her
pleaded case.
30. In cross -examination Mrs Meyer initially c onfirmed the version that she had
been unaware thereof that she had signed agreements of sale in respect of
the properties . She stated further that it was only after Nico had procured her
signatures on the agreement and the documents necessary to effect
registration of transfer, that she was informed of Nico’s and Sheila’s decision
to emigrate to New Zealand. She testified that Nico, having fraudulently
procured her signatures on the sale and transfer documentation, then knew
that he had secured his position ("Hy weet h y is nou safe” [“He knows he is
sale now”] ). He had accomplished his goal of divest ing Mrs Meyer of her
assets, at less than market value, so that he and his family could emigrate to
New Zealand. This version therefore entailed that Nico and Sheila disclosed
to Mrs Meyer that they intended to emigrate to New Zealand only after Nico
had stripped Mrs Meyer of her assets : "Hy het my nou absoluut gestroop van
alles wat ek het" [“He now absolutely stripped me of everything I have”] .
31. This evidence glaringly contradicted Mrs Meyer’s evidence the interlocutory
application, namely that Nico had put pressure on her and manipulated her to
sell the block of flats to him after he had received a business opportunity from
Mr Robbie Ross in New Zealand , which caused hi m to consider emigrating to
New Zealand. In other words, Mrs Meyer had known about Nico’s plans to
relocate to New Zealand prior to selling the properties to him.
32. When this contradiction was put to Mrs Meyer in cross -examination, she
changed her evidence , reverting to a semblance of the version in the
interlocutory application . She told the Court that Nico used the New Zealand
opportunity to pressurise her into selling the block of flats to him , by
threaten ing to accept the offer from Mr Ross and to emigrate to New Zealand
in the event that Mrs Meyer should refuse to do so. On this new version Mrs
Meyer , in her own mind, questioned Nico's financial ability to buy the house
and the block of flats from her: "... in die eerste plek in het ek beginne dink
nou maar hy het nie geld nie , hy lewe uit my bankrekening uit , waar gaan die
geld vandaan af kom wat hy vir my wil betaal ... vir my huis en vir die blok
woonstelle ..." [“… in the first instance I started thinking but he does not have
money, he lives out of my bank account, where is the money going to come
from that he wants to pay to me … for my house and for the block of flats..”] .
33. Mrs Meyer testified that upon being told by Nico that he had received an offer
from Mr Ross, she telephoned Mr Ross to confirm this information. Mr Ross
was taken aback by her call, and denied to her that he had made any offer to
Nico. Mrs Meyer testified that , having established that the New Zealand job
offer was an empty threat, she did not discuss the matter any further , and
carried on with her life. This evidence yet again contradicted her version in
the interlocutory application , where she had stated : "I do not know whether
the offer of work in New Zealand was real".
34. Mrs Meyer eventually conceded in cross -examination that she was upset by
Nico and Sheila's plans to emigrate to New Zealand, and that it was she who
persuaded them to stay in South Africa on the basis that she would sell the
house as well as the block of flats to Nico. Nico testified that Mrs Meyer had
told him that it was not necessary for him to emigrate to New Zealand ( “…dis
nie my familie nie …” [“… it’s not my family …”] ), and she needed him here in
Paarl.
35. I return to Mrs Meyer’s evidence to the effect that she did not know that she
had signed agreements of sale in respect of the properties. As indicated, she
initially testified that she had accompanied Nico to the offices of Abrahams &
Kiewitz Attorneys to sign documents, and implied that she did not know what
these documents were , or what the p urpose of the visit was . She explain ed
her ignorance on the basis that Nico had a very strong influence ("'n
geweldige invloed ”) on her , and she simply did whatever h e told her to do.
36. I agree with the submission made by Nico’s counsel that t his evidence was
manifestly untruthful . Mrs Meyer was clearl y an intelligent person with years of
business experience . She was in control of her personal and business affairs
for many years . On her version, her relationship with Nico was, at th e time of
the sales, very good. It is highly improbable that the reason for the visit to
Abrahams & Kiewitz, and the nature of the documents that she was about to
sign, would not have been di scussed between her and Nico prior to the visit.
It is likewise highly improbable that the attorney, Mr Kiewitz, would not have
explained the nature of the documents to Mrs Meyer prior to signature thereof.
37. That her professed ignorance cannot be true is illustrated by the fact that, on
25 May 2016, Mrs Meyer deposed to an affidavit entitled "Confirmatory
Affidavit", in which she explained that she had instructed attorneys Abrahams
& Kiewitz "to deal with the two property transactions at issue". Her counsel
drew her attention to her statement in the affidavit that "Deeds of sale and
transfers were then effected" in respect of both properties, and that the
purchase prices were R1.8 million and R3 million respec tively. To this she
replied: "Ja, ek sien dit. Ek weet niks van hierdie goed nie" [“Yes, I see it. I do
not know anything about these things”].
38. Mrs Meyer initially persisted in cross -examination with her version that she did
not know why she had to sig n the confirmatory affidavit. She later changed
her evidence in relation to the reason why she did not know what she was
signing , again blaming Nico and the absolute trust that she had in him to do
whatever he asked her to do. This version is not support ed by the
surrounding evidence in relation to the confirmatory affidavit. Irrespective of
the untenability and improbability of Mrs Meyer’s version, she had made notes
and corrected spelling errors on the first draft of the confirmatory affidavit.
She con ceded that the person who gave her the final version to sign at the
offices of Abrahams & Kiewitz told her that it was an affidavit. She therefore
knew that it was an affidavit, and what its purpose was. She also conceded
that she had had ample time to re ad, consider and sign the affidavit. This is
confirmed by the evidence of Mr Kiewitz. That she knew what the situation
was in which she found herself is further confirmed by the evidence of her
sons Marius and Anton, to which I shall briefly refer below. The untenability of
her evidence in this regard was apparent from the following passage of her
evidence:
"Ja, u het die eerste een gelees. Trouens u het veranderinge aangebring. U
het spelfoute reggemaak op die weergawe?
Ja, maar ek het dit nie intens g elees om te weet waaroor dit regtig gaan nie ...
Ek het dit vlugtig gelees en die spelfoute uitgekry, maar om die waarheid te sê
dit was seker my eie agterlosigheid dat ek nou beland het waar ek is, omdat
ek lees nie graag nie. Dit is vir my 'n pyn, en Nic o ook, sy vrou moet alles vir
hom voorlees. Hy lees niks en ongelukkig het hy dit (by) my geërf."
[“Yes, you read the first one. In fact, you made changes. You corrected
spelling errors on the version?”
“Yes, but I did not read it intensely to know what it was really about … I read
it quickly and took out the spelling errors, but to tell the truth it was perhaps
my own negligence that I am where I am, because I do not like to read. It is a
pain to me, a nd Nico also, his wife has to read everything to him. Hy does not
read anything and unfortunately he inherited it from me.” ]
39. Mrs Meyer eventually had to concede that she was unable to dispute Nico’s
version, namely that she did know what the nature of th e documents w as that
she would have had to sign (and did sign) at the offices of Abrahams &
Kiewitz , and that she did so willingly . One of the aspects, for example, in the
agreement of sale for the house that Mrs Meyer emphasized in attempting to
show that the transactions were to her detriment, was that the agreement
contained a clause affording her a lifelong habitatio . This was never
registered against the title deed of the property. Mrs Meyer conceded in
cross -examination that the issue of a lifelong habita tio in her favour over the
house had been discussed with her . Mr Kiewitz (whose evidence will be
referred to further below) testified that the habitatio was abandoned in the
course of discussion prior to eh signature of the agreement, because it would
be too expensive to register it. The reference to the habitatio remained in the
final version of the agreement as the result of a drafting mistak e. It was in any
event quite apparent from Mrs Meyer’s evidence overall that, at the time, she
knew that she had sold the pr operties to Nico.
40. It is clear, further, that Mrs Meyer had remorse about the transaction s
because she had come to the insight that her actions in concluding them were
not fair to her other four sons. In fact, the evidence show s that her other sons
were extremely dissatisfied with her decision to sell the properties to Nico,
and that it caused a serious rift ("'n verskriklike verwydering ”) between her
and her other sons. Mrs Meyer effectively conceded that she was to blame
for this state of affairs, because it had been her decision to sell the properties
to Nico to persuade him not to emigrate to New Zealand.
41. At the end of her cross -examination, Mrs Meyer admitted that she blame d
herself for having made a huge mistake in selling the properties to Nico: "Ek
het die grootste fout van my lewe gemaak om te gedoen het wat ek gedoen
het” [“I made the biggest mistake of my life in doing what I did”]. She
conceded that her decision caused a serious rift between herself, on the one
hand, and her other four sons, on the other.
42. When asked exactly when her other sons became unhappy about the
transactions, she testified that this occurred between the period of March
2015 and April 2016. They remained angry at her over the ensuing years,
and the internal family relations hips were strained. Eventually, when she was
hospitalised four years later in 2019, seriously ill, her other sons were
prepared to reconcile with her, but only on condition that the transactions be
reversed.
43. Mrs Meyer’s son Anton conceded in cross -examination that, during December
2019, his mother was regretting her decision to sell the properties to Nico: “ My
ma het bedenkinge gekry of sy die regt e ding gedoen het” [“My mother had
second thoughts as to whether she had done the right thing”] .
44. Anton testified that after Mrs Meyer had been discharged from hospital in
December 2019, she requested a meeting with Anton and Henk. They met at
a restauran t, the "Laborie Wynhuis" . During this meeting Mrs Meyer
disclosed all the facts leading up to the transactions : "Ons het daar om 'n tafel
gaan sit en Ma het begin uitpak'' [“We sat around a table and Mom starting
unpacking”].
45. At some stage during this conversation, Mrs Meyer apologised to Anton and
Henk for what she had done. When this occurred, Anton decided that all was
forgiven , and that he would assist Mrs Meyer in putting right what she had
done wron g: "Ma het gevra sy't ons hulp nodig om al les wat sy gedoen het te
probeer regstel ” [Mom asked she needed our help to rectify everything she
had done”]. When pressed for details as to why (or in respect of what) Mrs
Meyer had apologised, Anton replied: "Die dokumente wat sy geteken het, die
blok woonstelle wat sy verkoop het. Dit het g rotendee ls daaroor gegaan"
[“The documents she had signed, the block of flats that she had sold. It was
mainly about this”].
46. Anton’s evidence in this respect aligns with Mrs Meyer’s evidence in cross -
examination , namely that the sale of the properties was the biggest mistake in
her lif e, and that her other sons criticized her for having concluded the
transactions , thus favouring Nico . The position is further confirmed by the
evidence that o n 11 April 2016 Marius wrote an e -mail to Mr van Wyk, in
which he requested: "Kan jy die proses begin om hierdie transaksie uit te
daag en om te keer, sodat registrasie van die eiendom terug kom by sy
regmatige eienaar" ? [“Can you start the process of challenging and reversing
this transaction, so that registration o f the property can revert to its rightful
owner?”].
47. This passage from Marius’s email was put to Mrs Meyer as follows: "... die
brief bevestig dat die verkoop van die eiendomme iets is wat plaasgevind het
by ooreenkoms tussen u en Nico en dit het u ander seuns ongelukkig
gemaak".
48. Mrs Meyer responded: “Yes.”
49. This, it seems to me, was in truth the origin of this action. Mrs Meyer
regretted her decision to sell the properties to Nico, cutting out her other sons.
She was under pressure from them to make things right as far as they were
concerned. Her evidence to the effect that she did not kno w what she was
signing, as she was under Nico’s influence, was a way in which to overcome
her guilt by attempting to reverse the transactions and everything that
followed there from. This evidence, however, simply does not ring true .
The case that appeare d from the evidence furnished on Nico’s behalf
50. Nico’s evidence was considerably more consistent than that of Mrs Meyer.
He testified that he had assisted his mother over the years (especially since
Marius had emigrated) because he loved her, and wanted to help her. The
picture he painted of her was nevertheless that of a strong -minded woman
who was adept at running her own affairs.
51. He testified that when he informed Mrs Meyer of his intention t o emigrate to
New Zealand , she became very emotional and upset, because she did not
want him and S heila to emigrate , effectively leaving her on her own in South
Africa. Marius had by that time already emigrated. Nico wanted to emigrate
because he had received what seemed to be a ve ry favourable work
opportunity from Mr Robbie Ross, and he was struggling in South Africa.
Were he to remain in South Africa, he would have to restructure his own
affairs.
52. This issue was discussed between them over a period of approximately four
months. Mrs Meyer eventually persuaded Nico not to take up the business
opportunity , on the basis that she would sell the house and the block of flats
to him . The plan to sell the properties to him therefore originated with Mrs
Meyer herself. The house would be renovated to provide accommodation for
Mrs Meyer as well as for Nico and his family. There was accordingly an
agreement between Nico and Mrs Meyer about the sale of the properties to
him (or to the trusts controlled by him). Nico’s evidence in this resp ect was
not challenged in cross -examination. Sheila corroborated Nico's evidence
with regard to the agreement between Mrs Meyer, on the one hand, and Nico
and Sheila, on the other, that Nico would not accept the business offer from
Mr Ross in New Zealand, and that there would be a restructuring of their
affairs on the basis that Mrs Meyer would sell the properties to Nico.
53. It is common cause that during April 2015, and on Nico’s instruction, valuer
Franci Malan prepared a sworn value for the block of flats which was
considerably higher than what it was eventually sold for. Nico explained,
however, that Mrs Meyer was of the view that the purchase price suggested
by the valuation was too high. They eventually agreed on a price just below
the municipal value at the time in respect of each of the prop erties.
54. Nico testified that he had accompanied Mrs Meyer at least on three occasions
to the offices of Abraham s & Kiewitz, in order to provide instructions to Mr
Kiewitz with regard to the dra fting of the relevant documentation for the
transactions, and for signature of the agreements. He stated that Mrs Meyer
knew exactly what the purpose of these visits were, and what the documents
were that she had signed. This evidence was also not challenged in cross -
examination.
55. Mr Kiewitz testified that h e had attended an initial consultation with De Villiers,
Nico, and Mrs Meyer to discuss the transactions and to obtain formal
instructions from Mrs Meyer in respect thereof. A further consultation was
held in order to prepare and sign the agreements of sale. Thi s was a drawn -
out process ("Dit was eintlik 'n marathon sessie") that lasted three to four
hours. The second consultation was attended by the same people, and was
an "interactive " conversation between Mr Kiewitz on the one hand, and De
Villiers, Nico, and Mrs Meyer on the other . Mrs Meyer actively participated in
the conversation.
56. I pause to point out that Mrs Meyer testified that she had accompanied her
son, Marius , to consult wi th attorney Anvil van Wyk on 31 March 2016 ,
because Marius was concerned about Mrs Meyer’s conduct in selling the
properties to Nico . During this consultation, Mr van Wyk pointed out various
discrepancies in respect of both transactions. Mr van Wyk subsequ ently
prepared a memorandum in which he advised that the transactions should be
investigated. To this end, Mr van Wyk sent a letter of demand to Abrahams &
Kiewitz on 18 April 2016, seeking information regarding the transactions.
57. Mr Kiewitz testified th at the confirmatory affidavit was the product of a joint
effort between Mr Kiewtiz and attorney Aubrey Magerman after receipt of the
letter of demand. They obtained the instructions to dra ft the affidavit from Mrs
Meyer. Mr Kiewitz and Mr Magerman prepar ed a draft affidavit, which was
sent via email to Mrs Meyer. A final draft was prepared after receipt of her
input, and she signed it. Mr Magerman testified that t he purpose of the draft
confirmatory affidavit was to capture Mrs Meyer’s instructions ("om die klient
se instruksies vas te vang op 'n stuk papier") to reply to the letter received
from Mr van Wyk. A consultation was held for this purpose, which was
attended by De Villiers, Mr Kiewitz, Mrs Meyer, and Nico.
58. Mr Magerman was also involved in the settlement of the draft confirmatory
affidavit. He was emphatic that Mrs Meyer knew what had been recorded
there in. He recalled that during his interaction s with Mrs Meyer she
expressed her sadness about the fact that the relationship between herself
and her other sons, as well as the relationship among them, had broken
down.
59. Again, the evidence of Mr Kiewitz and Mr Magerman, namely that Mrs Meyer
knew that what the nature and content was of the agreements of sale and the
confirmatory affidavit, was no t challenged during cross -examination.
60. Mrs Meyer’s counsel attempted to discredit Mr Kiewitz's testimony because he
had failed to implement the terms of the agreements of sale which stipulated
that the purchase price would in each case be paid on registration of transfer;
and he only obtained valuations in respect of the properties after the
conclusion of the agreements. This criticism does not detract from the
evidence in relation to Mrs Meyer’s involvement in and knowledge of the
transactions an d the subsequent confirmatory affidavit. M r Kiewitz's conduct
in this regard might have been relevant in the context of a claim for breach of
contract by Nico, but it does not damage his evidence in respect of the central
issue for determination as put up in the particulars of claim, which was
whether Mrs Meyer had been misled in to signing the agreements .
61. It was in any event clear from the evidence that Abrahams & Kiewitz obtained
the further valuations in relation to the properties for transfer duty purpo ses
and not, as Mrs Meyer argued, as “sweetheart valuations” obtained after the
fact to cover Nico in the implementation of his fraudulent scheme .
62. On the totality of the evidence, Mrs Meyer’s version that she was induced by
Nico’s fraudulent conduct to si gn the agreement of sale and the confirmatory
affidavit, is highly improbable. She concluded the agreements and signed the
affidavit knowingly and voluntarily to give effect to the agreement with Nico
regarding the restructuring of their affairs . She did this to persuade Nico and
Sheila not to emigrate to New Zealand.
63. Much emphasis was placed on Mrs Meyer behalf on the fact that Nico had not
paid the purchase price of the house to Mrs Meyer on registration of transfer,
but paid it off in monthly payments of R20 000.00, which increased annually
with R1 000.00. The issue was relied upon to support Mrs Meyer’s case that
Nico had swindled the sale of the house into his trust’s name, and that it was
not a bona fide transaction.
64. Nico, however, referred to the reason for the sale of the house, namely to
assist him and his family given that they would not pursue the beckoning New
Zealand offer, and further to ensure that Mrs Meyer would have a dependable
monthly income from which to live. He test ified that these payments were
calculated by De Villiers on the basis of Mrs Meyer’s life expectancy and an
interest rate of 6%, with the total amount payable over a period of 10 years.
He said that the payment of the purchase price in instalments was dis cussed
and agreed to between him and Mrs Meyer.
65. Nico explained that Mrs Meyer did not want him to cause a mortgage bond to
be registered over the property. She preferred that Nico should rather owe
the balance of the purchase price to her, instead of to a bank : “As ek
oorsponklik daardie huis op ‘n verband geneem het en die geld oorbetaal het
dan sou sy daai geld tot haar beskikking gehad het. Sy het verkies dat ek nie
‘n lening by die bank aangaan nie. Dat ek daai geld van die huis vir haar
maandeliks betaal. Sy het dit in haar gedagtes gebruik as om van te lewe …”
[“If I originally took that house on a mortgage bond and paid over the money
them she would have had that money at her disposal. She preferred that I did
not take out a loan at the bank. That I pay that money to her monthly. She
used it in her thought s to live off …”]
66. I have mentioned earlier that Mrs Meyer’s counsel argued that the instalment
agreement to which Nico referred conflicted with the express provisions of the
agreement of sale. He tried to elicit a concession from Nico that the latter had
known that he would not be able to pay the purchase price against registration
of transfer, and that this constituted a misrepresentation. Nico denied that this
was the case.
67. It is trite that strong evidence is required to prove fraud.13 A consideration of
the evidence indicates that, whatever Nico’s intention was (there was no
reason to reject Nico’s evidence in this respect) , it could not have been a
fraud on Mrs Meyer. She knew that she had sold the house to Nico’s trust,
and from their discussions about the possibility of registering a bond over the
property, she knew that Nico himself did not have the funds to pay the
purchase price in full on registration of transfer. She received the monthly
instalments , which were paid from the Rhemco Trust, and never complained
about the fact that the Courtrai Trust (the purchaser of the house) had not
complied with its payment obligations under the agreement of sale .
13 See Nedperm Bank Ltd v Verbri Projects CC 1993 (3) SA 214 (W) at 220B.
68. Counsel’s objection to Nico’s evidence on the basis of the parol evidence rule
does not take matters any further. Mrs Meyer claims in delict on the basis
that the transaction s had been induced by Nico’s (and De Villiers’s) fraudulent
misrepresentations to the effect that the sales were in her best interests. She
is claiming in delict, and Nico does not rely on the oral agreement to pay in
instalments to overcome a contractual clai m based on the written agreement .
I do not have to decide the issue of whether the oral agreement can stand
alongside the written one.
69. When all is said and done, the evidence – both in relation to what was said
and Mrs Meyer ’s demeanour in the witness box – shows that she knew what
she was doing in selling the properties to Nico. On her own version t here
were discussions between them about Nico’s plan to emigrate . He and Mrs
Meyer , at her suggestion, came up with an alternative plan which would allow
him to remain in South Africa. That was the reason for the sale of the
properties. These proceedings arose thereafter, from Mrs Meyer’s remorse
about sidestepping her other sons. I got the impression that she was
conflicted, feeling pressurized to bring these proceedings to remain i n her
sons’ good books after the reconciliat ion in December 2019.
70. Whatever the motive was for the institution of the proceedings, I do not think
that Mrs Meyer has discharged the burden of proving fraudulent
misrepresentation on Nico's side on a balance of probabilities.
Have Mrs Meyer’s claims for the retransfer of the properties prescribed?
71. I have considered the merits of Mrs Meyer’s claim for retransfer of the
properties , and have found them wanting. Nico did, however, also raise a
special plea of prescription , which needs determinat ion.
72. Nico pleaded that the claims to cancellation of the respective agreements,
retransfer of the properties, or restitution constitute debts as contemplated in
sections 10 to 12 of the Prescription Act 68 of 1969. The prescription period
in respect of these debts is three years in terms of section 11 of the
Prescription Act.
73. Mrs Meyer’s claims in relation to the house therefore fell due14 during October
2015 (registration of transfer took place on 23 October 2015), and her claims
in respect of the fla ts fell due during November 2015, registration of transfer
having taken place on 16 November 2015. This action was instituted in
December 2020. It follows, so Nico argue s, that all of these claims have long
since prescribed.
74. I have indicated earlier in this judgment that Mrs Meyer’s evidence to the
effect that she did not know what the documents were that she had to sign,
and that she only obtained knowledge of the defendant’ fraudulent
misrepresentations during November 2019, does not ring true. Mrs Me yer in
fact conceded in cross -examination that she knew that she had signed
agreement s of sale in relation to each of the properties. Even if her
allegations in this regard were true, however, I agree with Nico that her claims
have prescribed , for the reasons that follow.
75. The term "debt" is usually employed to describe the correlative of a right or
claim to do some performance, in other words, as the duty side of an
obligation which implies a debtor -creditor relationship arising from contract,
delict, enrichment , or other restitutionary duty. It is preferable in the context of
prescription to speak of a "right of action" ("vorderingsreg") as correlative to a
"debt" ("skuld ” ), instead of a "cause of action" .15 The meaning that has been
given to the word "debt" since the 1968 Prescription Act came in force has
been in accordance with the definition in the New Shorter Oxford English
14 Prescription Act, section 12:
“(1) Subject to the provisions of subsections (2), (3), and (4), prescription shall commence
to run as soon as the debt is due.
(2) If the debtor wilfully prevents the creditor from coming to know of the existence of the
debt, prescription shall not commence t o run until the creditor becomes aware of the
existence of the debt.
(3) A debt shall not be deemed to be due until the creditor has knowledge of the identity
of the debtor and of the facts from which the debt arises: Provided that a creditor shall
be dee med to have such knowledge if he could have acquired it by exercising
reasonable care. ”
15 Sentrachem v Prinsloo 1997 (2) SA 1 (A) at 15C-H.
Dictionary,16 namely "1. Something owed or due: something (as money,
goods or servi ce) which one person is under an obligation to pay or render to
another . 2. A liability or obligation to pay or render something; the condition of
being so obligated" . The correlative of a debt in this sense is a right of action
vested in the creditor in which the payment of money, or the delivery of goods,
or the rendering of services is claimed.
76. A creditor does not have to have sufficient knowledge of all the relevant facts
in order finally to prove his claim for prescription to run: “Artikel 12(3) vereis
immers nie dat 'n skuldeiser oor voldoende kennis moet beskik om sy
vordering finaal te bewy s alvorens verjaring teen hom begin loop nie. … Al
wat vereis word, is dat die skuldeiser kennis moet dra van die wesenlike feite
waaruit sy eis ontstaan” [“Section 12(3) does after all not require that a
creditor should have sufficient knowledge finally t o prove his case before
prescription starts running against him … All that is required is that the
creditor has knowledge of the material facts from which his claim arises”] .17
77. The position was summarised as follows in City of Cape Town v Cell C
Limited and others18
“[53] It has been held that a debt is due when the entire set of facts which the
creditor must prove in order to succeed with his or her claim against the
debtor is in place or, in other words, when everything has happened which
would entitle the creditor t o institute action and to pursue his or her claim.
This does not include the legal conclusions which a litigant seeks to draw from
the facts .
[54] Prescription would start running against a party when there is either
knowledge or awareness of the facts fr om which the debt arises as well as the
identity of the debtor. A party would be deemed to have knowledge of these
facts if he/she could have acquired it by exercising reasonable care.
[55] Whether or not it could be said that a party failed to exercise reasonable
16 Makate v Vodacom 2016 (4) SA 121 (CC) para s 187-188. Emphasis supplied.
17 Absa Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA) para 14. My translation.
18 [2025] ZAWCHC 246 (10 June 2025) paras 53 -56. Emphasis supplied.
care would depend on a number of factors and consideration of all the
circumstances relevant to the claimant’s conduct .
[56] The inquiry into whether a claimant may be deemed to have acquired the
requisite knowledge and whether he/she exercised reasonable care is an
objective, and not a subjective inquiry . Therefore, the claimant’s conduct is
tested by weighing it against the steps which a reasonable person in his or
her position would have taken to acquire knowledge the requisite mini mum
facts to enable him/her to institute his/her claim timeously. ”
78. Mrs Meyer’s claims for the transfer of the house and the flats are based on
her pleaded cancellation of the agreements of sale in her particulars of claim
dated December 2020 . The cancellation, in turn, rests of the alleged
fraudulent misrepresentation of De Villiers and Nico . In general, a delictual
debt becomes due when the delict has been committed.19 Are Mrs Meyer’s
claims for the retransfer of the properties in this context a debt as
contemplated in the Prescription Act, which would have prescribed after the
effluxion of three years since the debt had become due?
79. The case of Leket i v Tladi N.O . and others ,20 to which Nico’s counsel referred,
is instructive in this regard. T he appellant claimed the recovery of immovable
property from his grandfather's deceased estate, which the appellant claimed
had belonged to his father. The appellant alleged that his grandf ather had
fraudulently caused the property to be transferred and registered in his own
name by representing to the Registrar of Deeds that he was the only male
heir of the appellant's father, and thus entitled to the property upon intestate
devolution acco rding to custom. The first respondent was the executor of the
deceased estate, and the second and third respondents were the
beneficiaries of the estate. The fraud by the appellant's grandfather took place
in June 1969. The appellant's summons was only ser ved on the respondents
in 2004. The appellant attained majority on 7 April 1981, and the running of
prescription had been delayed until 7 April 1981 in terms of section 13 of the
19 See Nedcor Bank Bpk v Reqering van die Republiek van SuidAfrika 2001 (1) SA 987 (SCA)
para 4.
20 [2010] 3 All SA 497 (SCA).
Prescription Act. The first respondent contended that, as the summons was
served more than three years after 7 April 1981, the appellant's claim had
prescribed.
80. The SCA held21 that for the purpose of considering the special plea of
prescription raised by the respondents, in the context of the provisions of the
Prescription Act, th e appellant was a creditor . Any obligation on the estate to
restore the property to its rightful owner was a debt as described in section
11(d)22 of the Prescription Act. The appellant replicated that he could not
have instituted action earlier because until 6 August 2003 he had no
knowledge of "the identity of the defendants and the facts from which the debt
arose".23
81. The SCA held24 that the real question for decision in the appeal was whether ,
on a consideration of the available evidence in totality , it could be said that the
appellant could not have acquired knowledge of the fraud on the part of his
grandfather in June 1969 "by exe rcising reasonable care", as required in the
proviso to section 12(3) of the Prescription Act. The SCA concluded that the
appellant's failure to institute action timeously was not due to his lack of or
inability to obtain knowledge, but rather to his dila toriness.25 The appeal was
dismissed.
82. Another instructive decision from the SCA is Ethekwini Municipality v
Mounthav en (Pty) Ltd .26 The issue was whether a claim by the appellant for
the retransfer of a vacant immovable property from the respondent constituted
a debt as contemplated in the Prescription Act. The appellant had sold the
property to the respondent in 1985 (transfer took place in 1986) subject to the
condition that, should the respondent have failed to erect buildings on the
property to the value of not less than R100 000.00 after the expiry of three
21 Leketi v Tladi supra para 8.
22 Prescription Act, section 11(d): “11. The periods of prescription of debts shall be the following:
… (d) save where an Act of Parliament provides otherwise, three years in respect of any other
debt. ”
23 With reference to the proviso in section 12(3) of the Prescription Act.
24 Leketi v Tladi NO supra para 10.
25 At para 18.
26 2018 (1) SA 384 (SCA).
years from the date of the sale, ownership of the property would revert to the
appellant , who would be entitled to demand re -trans fer thereof against
payment of the purchase price.
83. The respondent failed to develop the property within the stipulated period, and
the appellant thus launched an application invoking the reversionary clause
and claiming retransfer of the property. This wa s done only in 2014. The
respondent took the point that the claim constituted a debt as contemplated in
the Prescription Act, and that it had prescribed. The SCA upheld this
contention on the basis that the reversionary clause constituted a personal
right and not a limited real right in respect of the property. The appellant 's right
to claim retransfer required the respondent to do something in favour of the
appellant . It therefore constituted a debt which prescribed after the effluxion of
the three -year pe riod.27
84. In considering an application for leave to appeal , the Constitutional Court28
confirmed that a claim to transfer immovable property in the name of another
is a claim to perform an obligation to deliver goods in the form of immovable
property. It is a "debt" in the dictionary sense accepted in Makate v Vodacom.
Leave to appeal was refused inter alia on this basis.
85. These principles apply to Mrs Meyer’s claims.
86. As indicated earlier, Mrs Meyer’s version is that she accompanied her son,
Marius , to consult with attorney Anvil van Wyk , on 31 March 2016 . During this
consultation , and as confirmed in his memorandum which was referred to in
the course of the evidence led at the trial , Mr van Wyk pointed out various
discrepancies in respect of both transactions. He also expressed the view at
the time that Mrs Meyer had not known what she was doing when she signed
the agreements of sale. During her evidence in chief, Mrs Meyer testified that
she was shocked when Mr van Wyk said that the transactions amounted to
fraud : "Al wat ek onthou want dit het vir my geruk en dit is dat Anvil ge sê het
27 Ethekwini Municipality v Mounthaven supra paras 15 -16.
28 Ethekwini Municipality v Mounthaven (Pty) Ltd 2019 (4) SA 394 (CC) para 8.
dis 'n bedrogsaak" [“All I remember because it shook me and that is that Anvil
said it was a case of fraud”] .
87. In Mr van Wyk's memorandum , which was dated 1 April 2016, he advised
Marius and Mrs Meyer that : "My advies is dat alvorens daar tot enige
ooreenkomste geraak word, die twee transaksies behoorlik ondersoek word
ten einde vas te ste l op welke grondslag dit gebeur het dat, onder andere,
eiendomme tussen verbonde persone teen minder as markwaarde hande
verwissel het, sodat die belasting en ander implikasies vasgestel kan word"
[“My advice prior to coming to any agreements is that the tw o transactions
must be properly investigated to ascertain how it happened that, amongst
others, properties between related persons were alienated at less than market
value, to establish the tax and other implications” ].
88. Mrs Meyer testified that she had no t received a copy of this memorandum at
the time. She had, nevertheless, been present at the consultation with Mr van
Wyk, and clearly had understood what Mr van Wyk was saying, given her
reaction of shock .
89. Marius, notably, conceded during cross -examinat ion that he had been aware
of Mrs Meyer’s intention to sell the properties to Nico before the transactions
were concluded and implemented. Marius was not happy with the situation.
His relationship with Mrs Meyer subsequently deteriorated, because she
refused to follow his advice not to sell the properties to Nico . Marius would no
doubt have expressed the reasons for his dissatisfaction of the state of affairs
to Mrs Meyer at the time. Marius further testified t hat a letter of demand
subsequently sent by Mr van Wyk to Abrahams Kiewitz Attorneys on 18 April
2016 had been sent on his instructions. He explained that th e letter was sent
because "Ek wou die proses aan die gang kry om die transaksies om te keer,
om dit nietig te verklaar, om my ma te beskerm want sy het al haar bates
verloor" [“I wanted to start the process of stopping the transactions, to declare
them void, to protect my mother because she had lost all her assets”].
90. Mrs Meyer ’s son Anton testified that, after the consultation with Mr van Wyk,
Marius requested him to consult an advocate at the Cape Bar on his behalf.
Anton complied with this request , and took his brother Henk with him to
consult. The advocate advised them that Mrs Meyer would have t o institute
court proceedings to reverse the transactions. Anton decided not to follow
this advice, because he felt that Mrs Meyer would not have survived the
ordeal of a court case. Anton nevertheless knew at that stage that grounds
existed upon which b oth transactions could be set aside. Marius and Anton
however both subsequently decided to "walk away" from the matter. The
internal family relations were unhealthy .
91. On Anton’s and Marius’s evidence, all that Mrs Meyer needed to do was to
enquire from any of her sons Marius, Henk or Anton what the outcome was of
Mr Van Wyk's advice to Marius, as set out in the memorandum. She could
also have asked Mr van Wyk about the matter , given what he had told her
during her consul tation with him . Given how heavily the burden of the
situation rested on her shoulders according to her evidence, it is inexplicable
that she did not do this in the “ exercise of reasonable care ” as contemplated
in section 12(3) of the Prescription Act.
92. In the interlocutory application, Mrs Meyer alleged that when she received the
schedule of intended payments for the house from Nico it led her "to the
suspicion that Nico defrauded, not only me, but the fiscus". Nico testified that
although he could not recall exactly when this schedule was drawn up by him
and handed to Mrs Meyer , it must have occurred before the instalment
payments in respect of the sale of the house commenced in March 2016. On
this version, Mrs Meyer already had serio us suspicions at least in respect of
the sale of the house when she accompanied Marius to the consultation with
Mr van Wyk on 31 March 2016.
93. I agree with the submission by Nico’s counsel that on a consideration of the
totality of the evidence, Mrs Meyer k new or ought reasonably to have known
by April 2016 that she was entitled to challenge the validity of the
transactions. If she had exercised reasonable care, she would in any event
during that time have acquired the minimum facts29 necessary to institute a
claim for the re-transfer of the properties, more than three years before the
institution of the action in December 2020.
94. Mrs Meyer’s claims for the retransfer of the properties have accordingly
prescribed.
Mrs Meyer’s claim for the setting aside of the winding -up and dissolution of
AJM Ondernemings (previously “Rotsvas”)
95. This claim was not pursued with any vigour.
96. Mrs Meyer pleaded in the particulars of claim that she, as shareholder and
director of AJM Onderneming s (the new name for Rotsvas) , seeks the setting
aside o f its winding -up and subsequent dissolution. No grounds for this relief
are disclosed in the particulars of claim, and Mrs Meyer did not make out a
case for it in her evidence.
97. The highwater mark of her evidence in respect of th is claim is that Nico had
told her at some stage (" op 'n stadium ”) that the banking account of Rotsvas
had to be closed. When she asked why this should be done, Nico replied that
the company was insolvent. Whilst it is improbable that Mrs Meyer would
have been satisfied with this curt explanation at the time (her relationship with
Nico was still very close), the fact remains that she had signed the special
resolution to place Rotsvas (or AJM) under voluntary liquidation in terms of
sections 349 and 351 of the Companies Act , 1973 . There is no evidence
upon which this resolution could or should be set aside.
The claim for the rendering of an account
98. Mrs Meyer claims , in the alternative, that Nico should render an account to
her, particularly in relation to the sale of the properties. In the particulars of
29 See Fluxmans Inc . v Levenson 2017 (2) SA 520 (SCA) para 42.
claim she alleges that Nico and/or De Villiers, "by virtue of the relationships
and/or the agreement", are obliged to render a full account of the
“transactions ”.
99. The present matter is however not one in which the rendering of an account
can be claimed. The object of a claim for an account and debatement thereof
is to enable the plaintiff to establish whether the defendant is indebted to the
plaintiff. In order to succeed with a claim for the rendering of an account, a
plaintiff must allege and prove a fiduciary relationship between the parties
which obliges the person in a fiduciary position to provide an account, or a
contractual obligation to render an account, or a statutory duty to render an
account.30
100. On the evidence neither a contrac tual obligation nor a statutory duty to render
an account in respect of the transactions has been shown . Nico testified that
he had assisted his mother because he loved her, not because of any
fiduciary duty resting on him. Mrs Meyer’s counsel conducted his cross -
examination of Nico and Sheila primarily on the basis of a duty to disclose
information in respect of the transactions recorded on the bank statements of
Rotsvas , but n o claim for the rendering of an account in respect of those
transactions (in p articular various payments between Rotsvas and Nico’s
family members) is set out in the particulars of claim .
101. It appeared from the evidence that Nico in any event did not manage or
conduct transactions on the banking account of Rotsvas. This was done by
Sheila, on Mrs Meyer’s instructions. There was some to -ing and fro -ing about
whether Mrs Meyer had in fact given instructions – Sheila said she (Mrs
Meyer) did, and Mrs Meyer’s counsel suggested that this was untrue because
those instructions, insofar as they had been in writing, had not been
discovered. Be that as it may, n o case is pleaded against Sheila (who is not a
party to the action) for the rendering of an account , and no case was made
out to the effect that Sheila was effectively Nico’s alter ego.
30 Brown and others v Yebba CC t/a Remax Tricolor 2009 (1) SA 519 (D); Absa Bank v Janse
van Rensburg supra paras 14 -16.
102. The alternative claim therefore falls to be dismissed.
Conclusion
103. I accordingly find, for the reasons set out above, that Mrs Meyer has not
discharged the burden resting upon her to prove her claims. Her claims for
the retransfer of the prop erties have, in any event, prescribed.
Costs
104. There is no reason why costs should not follow the event. The parties were
represented by senior counsel who appeared without juniors. In the exercise of
my discretion under Rule 67A, I regard the issues raised in the matter as
sufficiently complex to warrant counsel’s fees taxed on Scale C in relation to fees
incurred from 12 April 2024 onwards.
Order
105. In the circumstances , the plaintiff’s claims are dismissed, with costs, including
counsel’s fees taxed on Scale C.
____________________
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the plaintiff : Mr P. A. Myburgh SC, instructed by
Dunsters Attorneys Inc.
For the first and second defendant s: Mr P. Vivier SC , instructed b y Fourie
Basson Veldtman Attorneys