1

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
GAUTENG LOCAL DIVISION, JOHANNESBURG

Case Number: 2023-055003
(1) REPORTABLE:
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED

In the matter between:

GLENHAZEL INVESTMENT (PTY) LTD Applicant

And

GREGORY MASSIMO BARBAGLIA NO 1
st Respondent

DOMENICO SATURININE MAZZA NO 2
nd Respondent

CARLOS FERNANDO PIRES PEDREGAL NO 3
rd Respondent

LLG CENTURION (PTY) INVESTMENT CC 4
th Respondent

TOTAL ENERGIES MARKETING SA (PTY) LTD 5
th Respondent

YA CHESA SERVICE STATION (PTY) LTD 6
th Respondent


JUDGMENT

2

MOTHA J

Introduction

1) Following the applicant’s sale of the Eersterust Property on 15 August 2024,
the application for specific performance became moot; what remains before this
court is the adjudication of the counter -application for the return of the deposit in the
sum of R1000 000.00, paid on 1 October 2021. On 10 April 2025, the applicant threw
a spanner in the works by launching an action for damages.

The parties
2) The applicant is GLENHAZEL INVESTMENTS PROPRIETARY LIMITED, a
company duly incorporated in accordance with the company laws of South Africa.

3) The first respondent is GREG MASSIMO BARBAGLIA N.O. , a businessman
who acts in his capacity as a trustee of the Novaprop Eight Trust (trust number:
IT4237/2008).

4) The second respondent is DOMENICO SATURNINE MAZZA N.O ., a
businessman, who acts in his capacity as a trustee of the Novaprop Eight Trust (trust
number: IT4237/2008).

5) The third respondent is CARLOS FERNANDO PIRES PEDREGAL N.O ., a
businessman who acts in his capacity as a trustee of the Novaprop Eight Trust (trust
number: IT4237/2008).

6) The fourth respondent is LLG CENTURION PROPERTY INVESTMENTS CC,
a close corporation duly incorporated in accordance with the laws of South Africa.

7) The fifth respondent is TOTALENERGIES MARKETING SOUTH AFRICA
PROPRIETARY LIMITED, a private company duly incorporated in accordance with
the laws of South Africa.

3

8) The sixth respondent is YA CHESA SERVICES PROPRIETARY LIMITED, a
private company duly incorporated in accordance with the laws of South Africa.

Facts in brief
9) The applicant is the owner of Portion 0 of Erf 2[ …], in the township of
Eesterust Ext 2, City of Tshwane Metropolitan Municipality, Gauteng, situated at 5[…]
D[…] D[…] Avenue, Eesterust ("Property"). The applicant leased the Property to a
well-known seller of petroleum products, the fifth and sixth respondents jointly.

10) On 24 August 2021, the Trust, represented by Mr. Greg Barbaglia, made a
written offer to purchase the Property from the applicant , and the offer was accepted
by the applicant’s representative, Mr. Wolpe, on 25 August 2021. Accordingly, the
applicant, represented by Mr . Wolpe, and the Trust , represented by Mr . Greg
Barbaglia, concluded a written commercial immovable property sale agreement
("Agreement").

11) In terms of the agreement, the purchase price of the Property was the sum of
R47 840 000.00 (forty-seven million, eight hundred and forty thousand Rand)
exclusive of VAT ("Purchase Price" ).

12) An amount of R1 000 000.00 (one million Rand) was the deposit ("Deposit”).
The Deposit was payable within 7 (seven) days after the successful conclusion of the
due diligence. On 1 October 2021, Mr Barbaglia paid the deposit of R1000 000.00
into the trust account of Millers Attorneys, the applicant’s Attorneys.

13) Pursuant to the respondents’ failure to pay the balance of the purchase price,
the applicant instituted an application for specific performance, and the respondents
responded by launching a counter -application for the deposit . On 24 August 2024,
the applicant sold the property at an auction for R30 000 000.00. Hence, the
application for specific performance has become moot.

The issues
14) In developing the counter-application for the return of the deposit, the
respondents submitted that Mr Barbaglia's purported conclusion of the Eersterust

4

Sale Agreement on behalf of the Trust fell foul of clause 9.6 of the Trust Deed, which
reads:
“9.6 The unanimous agreement of all trustees must be obtained before any
significant transaction affecting the trust should be valid and binding upon the
trust."

15) The submission is that Mr. Barbaglia did not have the authority to bind the
Trust. Under oath and confirmed by his fellow trustees by way of confirmatory
affidavits, he stated that:

“… it was only during the course of the preparation of the first to fourth
respondents' answering affidavit to the main application, which Mr Barbaglia
signed on 13 July 2023, that Mr Barbaglia became aware, for the first time,
and by way of the advice given to him by Bowmans, that the unanimous
consent of all trustees was required under the trust deed to bind the Trust.”
1

16) The applicant submitted that there is a material dispute of fact on the
assertion that:
“It was therefore only nearly two years after the deposit had been paid that Mr
Barbaglia became aware that he had not been authorised to conclude the
Eersterust Sale Agreement or to pay the deposit...”
2

17) Having rejected that version, the applicant argued that it did not accept that
the two trustees were not aware of Mr. Barbaglia’s conduct, and maintained:

“ If it is true, as Mr Barbaglia claims, that he paid R1 million of the Trust's
money to the applicant when he was not authorised to do so and without the
knowledge of the two other trustees, then clearly he is guilty of the theft of the
Trust's money. Yet, there is no indication of any sort that the two other trustees
took any action against Mr Barbaglia. It must therefore mean that they have
no reservations about keeping a thief of the Trust's money in his position as a
trustee, apparently without consequence. It will be argued on behalf of the

1 Para 18 of the respondents’ Heads of argument.
2 Supra para 19.

5

applicant that, in so doing, the two other trustees are guilty of an egregious
failure in their duties to act in the best interests of the Trust.”3

18) Against this background of incredulity, the applicants as severated that: “It is
for these reasons and others that the applicant seeks a referral of the application to
trial, so that the applicant can cross -examine Mr Barbaglia on his version and also
the two other trustees on why, if it is true that Mr Barbaglia was on a frolic of his own,
that they forsook their fiduciary duties to the Trust by failing to take any action
against Mr Barbaglia.”
4

The law
19) Dealing with Trusts, the court in Land and Agricultural Development Bank of
SA v Parker and Others
5held:

“Joint action requirement entails that trustees must act together.
[15] For the Parkers to purport to bind the trust estate after the son’s appointment,
without (according to his evidence) consulting him, constituted a further usurpation
and a further breach of their obligations under the trust deed. It is a fundamental rule
of trust law, which this Court recently restated in Nieuwoudt NO v Vrystaat Mielies
(Edms) Bpk, that in the absence of contrary provision in the trust deed the trustees
must act jointly if the trust estate is to be bound by their acts. The rule derives from
the nature of the trustees’ joint ownership of the trust property. Since co-owners must
act jointly, trustees must also act jointly. Professor Tony Honoré’s authoritative
historical exposition has shown that the joint action requirement was already being
enforced as early as 1848. It has thus formed the basis of trust law in this country for
well over a century and half.”
6

Submissions
20) In brief , c ounsel for the respondent s contended that there were two
unanswerable bases upon which they maintained that the agreement was void. First,

3 ANSWERING AFFIDAVIT IN COUNTER APPLICATION AND IN THE replying affidavit in the MAIN
APPLICATION, para 13.6
4 Supra para 13.7

APPLICATION, para 13.6
4 Supra para 13.7
5 (186/2003) [2004] ZASCA 56; [2004] 4 All SA 261 (SCA); 2005 (2) SA 77 (SCA) (23 September
2004).
6 Supra para 15.

6

Mr Barbarglia had no authori ty to represent the Trust ; hence, there was no
cognizable legal basis for the applicant to retain the deposit, which was paid under a
void agreement. The T rust was entitled to its return under condi ctio indebiti or
condictio sine causa, and more so now that the property had been sold, the
argument went. He, furthermore, submitted that the action for damages w as a ruse
to hold on to the deposit.

21) The second string to the r espondents’ bow wa s s 2(1) of the Alienation of
Land Act no 68 of 1981, which reads:
“No alienation of land after the commencement of this section shall, subject to
the provisions of section 28, be of any force or effect unless it is contained in
a deed of alienation signed by the parties there to or by their agents acting on
their written authority.”

22) Referring to the matter of Goldex 16 (Pty) Ltd v Capper NO and
Others,
7counsel submitted that the correct legal position is:
“Where a trust has more than one trustee, any alienation of land entered into
by that trust would require the signature of all the trustees. In the absence of
authority in the trust deed, in respect of a trust with more than one trustee, a
trustee is regarded as an agent as intended in section 2(1) of the Alienation of
Land Act, and would require the written authority of the other trustees to
conclude a deed of alienation on behalf of the trust. In the absence of written
authorisation a deed of alienation concluded by such a trustee would not be in
accordance with the provisions of section 2(1) of the Alienation of Land Act
and would be of no force and effect.”
8

23) When asked about the other defences, counsel submitted that without
making any concessions, they relied on the authority point.

24) Counsel for the applicant submitted that this court c ould not divorce its
pronouncement on the deposit from the action for damages. Without having been
subjected to cross- examination, counsel s ubmitted that Mr. Barbaglia should not be

subjected to cross- examination, counsel s ubmitted that Mr. Barbaglia should not be

7 (24218/2013) [2017] ZAGPJHC 305 (18 October 2017)
8 Supra para14.

7

believed when he stated that he did not have the necessary authority from the two
other trustees . On the question of s 2(1) , he contended that even if the court
concluded that the Trust did not authorize Mr. Barbarglia to act on its behalf, he had
an ace up his sleeve. The fourth respondent, LLG Centurion Properties Investment,
was nominated to replace the Trust as the purchas er. Accordingly, a valid contract
had been entered into, and the deposit ought not to be released to the respondents.

analysis
25) On 22 April 2022, the applicant dispatched a letter of demand for the balance
of the purchase price. That precipitated a response from t he respondents’ lawyers,
through a letter which placed in dispute the fulfilment of the suspensive conditions
under clauses 3 and 6 of the agreement . At paragraph 5 of the letter, the attorneys
said: “Pursuant to the sale agreement our client(s ) paid a deposit of R 1m which is
repayable together with appropr iate interest. Your client is called upon to forthwith
return the deposit, with interest, to our clients.”

26) At this juncture, i t was apparent that t he bone of contention between the
parties was that the suspensive conditions had not been fulfilled, and, therefore, the
agreement was of no force and effect . Of course, the applicant rejected that version
of events and contended that this amounted to a repudiation of the agreement, which
it did not accept.

27) In March 2023, the applicant launched the application for specific
performance, contending that the s uspensive conditions had been fulfilled. That Mr.
Gregory Massimo Barbaglia did not have the authority to enter into the agreement on
behalf of the Trust was mentioned for the first time in the answering affidavit. Indeed,
the respondents’ counter-application hinges on the absence of authority , especially
when read with clause 9.6 of the Trust Deed.

28) Mr. Barbaglia stated in no uncertain terms that : “ Although I was required to

28) Mr. Barbaglia stated in no uncertain terms that : “ Although I was required to
obtain my fellow trustees' unanimous consent to enter into the Agreement on behalf
of the Trust, I did not do so.”9Furthermore, he asserted that: “I am advised that since

9 FIRST TO FOURTH RESPONDENTS'NSWERING AFFIDAVIT para 12.

8

the unanimous consent of the trustees under the Trust Deed was not obtained, I was
accordingly not authorised to enter into either the Agreement or the Ruimsig Sale
Agreement on behalf of the Trust.”
10

29) The thrust of the Trust’s argument is that the applicant would be unjustly
enriched if they were to retain the deposit, because the agreement was pursuant to a
void contract.

30) For the doctrine of unjust enrichment to succeed, the Trust must prove that
Mr Barbaglia did not have the authority to act on behalf of the Trust. There is a
patent and pertinent material dispute of fact on this issue of consent . It is rather
curious, to say the least, that the authority issue emerged in the answering affidavit.
It begs the question, because the respondents instructed the same lawyers from the
commencement of the proceedings. Certainly, it required no legal advice for the two
trustees to simply state , right from the beginning, that they were not consulted.
Instead, the issue at stake was the non-fulfillment of the suspensive clauses.

31) This court endorses the submission made by the applicant’s counsel that it
cannot finalise the counter -application for the deposit without making a ruling on the
validity of the agreement, which would, ipso facto, have a direct impact on the action
for damages. Consequently, this court disagrees with the respond ents’ counsel that
the action for damages is simply a ruse to retain the deposit. It would be a height of
folly to turn a blind eye to the existence of the action for damages ; the two are joined
at the hip. Thus, this is one of those matters that cannot be decided on affidavits. For
justice to be done, t he cross -examination of Mr. Barbaglia and the two trustees is
indispensable.

32) In instances such as these, w hat occupies the front and centre of the
proceedings is Rule 6(5)(g) of the Uniform Rules of Court, which reads:

“When an application cannot properly be decided on an affidavit the court may

“When an application cannot properly be decided on an affidavit the court may
dismiss the application or make such an order as it deems fit with a view to

10 Supra para 20.

9

ensuring a just and expeditious decision. In particular, but without affecting
specified issues with a view to resolving any dispute of and to the end may
order any deponent to appear personally or grant leave for such department
or any person to be subpoenaed to appear and be examined and cross
examined as a witness or it may refer the matter to trial with appropriate
directions as to the pleadings and definitions of issues or otherwise.”

33) At the launch of these proceedings, the applicant could not have anticipated
the existence of a material dispute of fact, since, under oath, Mr Barbaglia stated he
only became aware of the requirement to inform his fellow trustees when he filed his
answering affidavit.

34) I am of the considered view that this matter should be referred to trial , and
the parties should use their best endeavors to consolidate this case and the action
for damages, if possible.

Costs
35) Despite the cancellation of the agreement, in September 2024, t he applicant
failed to withdraw the matter. The submission of c ounsel for the applicant that its
client could not have withdrawn the matter without the respondents’ consent , and
when it sought consent , it was not forthcoming, or the respondents sought costs, is
without merit. I can not conceive of any reason why t he applicant should not be
ordered to pay the costs of one counsel on scale B. The costs of the counter-
application are to be costs in the cause.

Order
1. The main application is dismissed with costs on scale B.

2. The counter-application is referred to trial , the notice of counter -
application stands as simple summons , the founding affidavit to counter -
application as a declaration, the answering affidavit to the counter -application
as a plea, the reply and supplementary affidavit as a replication, and the reply
to the supplementary affidavit as a rejoinder.

10

3. The costs of the counter-application are to be costs in the cause.

4. Any f urther exchange of pleadings , request for further particulars ,
amendments, discovery, and the holding of a pre-trial conference shall follow
the usual process as regulated by the Uniform Rules of Court.

5. Pending the finalization of the trial, the deposit of R1000 000.00 is to
be retained in an interest-bearing Trust account of Miller Attorneys.

6. In case of any unreasonable delay in prosecuting the action or any
deliberate and unreasonable non-compliance with the Uniform Rules of Court,
this order shall lapse and the affected party shall approach the court for relief,
on supplemented papers.

MP MOTHA
JUDGE OF THE COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG

APPEARANCES:

Date of Hearing: 29 April 2025
Date of Judgment: 25 July 2025

For Applicant: ADV C CREMEN
Instructed by YAIR MILLER ATTORNEYS

For 1
st to 4th Respondents: ADV A.E. FRANKLIN SC
with ADV F.R. McADAM
Instructed by: BOWMAN GILFILLAN INC