IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2024-079984
In the matter between –
GLASFIT INTERNATIONAL (PTY) LTD Applicant
and
WILKIN, BRADLEY JAMES First Respondent
WILKIN, CHRISTELLE Second Respondent
DELIA KRUGER ATTORNEYS Third Respondent
BLIGNAUT, ROMANA Fourth Respondent
REGISTRAR OF DEEDS JOHANNESBURG Fifth Respondent
By transmission of this judgment by email and uploading on Court Online /
Caselines the judgment is deemed to be delivered
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) JUDGMENT : 28 AUGUST 2025
..........................
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JUDGMENT
SNYCKERS AJ
INTRODUCTION
[1] This application concerns a claim for rectification of a deed registered by the
fifth respondent, the registrar of deeds. The deed in question styles itself as a
“Borgverband” (surety bond). The claim for rec tification is to make it a first
mortgage bond. In essence, the claim amounts to a contention that there had
been an agreement that a first mortgage bond would be drawn and registered,
that instructions had been given to an attorney to have this attended to, but, by
mistake, what ended up being drawn and registered was this Borgverband, not
a first mortgage bond. The rectification claim extends to seeking orders against
the conveyancer who attended to the registration and against the registrar to
see to it that the correct document, namely a first mortgage bond, be registered,
once the deed was rectified to become such a bond.
[2] The application occurs against the backdrop of pending action proceedings
under a different case number. This is an important , and ul timately decisive,
dimension to the application.
[3] Mr Wilkin, the first respondent, was an employee of Glasfit. He wanted to buy
a house, but could not get the required financing from a bank. His employer,
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Glasfit, was willi ng to assist. The problem was that, in terms of the National
Credit Act,1 Glasfit was, at least according to Wilkin, not entitled to provide the
kind of assistance to which the parties ended up agreeing, as what they agreed
to was a credit agreement governed by t he NCA , when Glasfit was not a
registered credit provider.2
[4] Glasfit, via Mr Kluever, agreed with Mr Wilkin3 that it would finance the purchase
of his house, with specific terms as to capital, interest, payments, escalations,
draw-downs and repayment. In an email between the two, that ca ptured the
terms of what they agreed, Mr Kluever added the following term or condition:
“We will instruct Delia Kruger Attorneys to register a first mortgage bond
in the amount of R2,200,000 as security for the above loan in favour of
Glasfit International over the propert y [erf description]. The cost of
drafting and registration of the bond will be for your account and can be
capitalised to the loan. (We understand from Delia Kruger that it should
take minima time to prepare the documents but have not had an
indication of the fee they will charge.)”
[5] The funds were advanced and the house was purchased. A deed was executed
via Ms K ruger and a conveyancer, Ms Blignaut (the fourth respondent), and
1 Act 38 of 2005.
2 It is not common cause between the parties that the loan agreement is contrary to the terms of the NCA,
nor that it is void as a result – Glasfit in the action it instituted alleges that the NCA is not applicable to the
transaction as the parties were not at arms’ length.
3 In the pleadings exchanged in the action, it is common cause that the loan agreement(s) were
concluded with both Mr Wilkin and Mrs Wilkin. In the answering affidavit, Wilkin says the following in para
55: “I was informed that, because the Second Respondent [Mrs Wilkin] was not a party to the loan
agreement, but the property would be purchased for the benefit of both me and the Second Respondent,
and registered in both our names, the Applicant required a ‘joint suretyship’.” The notion that Mrs Wilkin
was not a party to the loan agreement is inconsistent with the common cause pleadings in the action,
and with the ex facie terms of the special power of attorney and the surety bond.
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registered in the registry. This de ed, drawn in Afrikaans, styled itself a
‘Borgverband’ (surety bond). It purports to be a deed of suretyship in which the
principal debtors and the sureties are the same individuals, namely the Wilkins,
in relation to the loan amount of R2,2m said to have been advanced to them.
The surety bond does not purport to be a first mortgage bond, and Mr Mundell,
who appeared for Glasfit, did not seek to submit that, on its terms, the deed
could be read as in fact being a first mortgage bond. The deed does, however,
record a declaration as to a first mortgage bond over the property properly
identified in the deed, in the following terms:
“vir die behoorlike nakoming van alle voormel de verpligtinge het die
Komparant [appearer] q.q. verklaar om spesiaal te verbind as EERSTE
verband” [proper description of the property].
[for the proper fulfilment of all abovementioned obligations the appearer
in such capacity declared to bind specially as first mortgage bond…]
[6] Again, before me, Mr Mundell disavowed any submission that this portion of the
bond could stand as a first m ortgage bond without the rectifications sought by
Glasfit. I am not sure whether this concession was correctly made. Whether the
deed required rectification before it could be accepted as a properly registered
first mortgage bond is one thing. Whether the deed as it stood on its terms could
be interpreted as purporting to be a first mortg age bond, with or without th e
nonsense self-suretyship it also contained, is another. Given my decision in this
matter, I do not make any pronouncement on this issue.
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[7] It may be noted that, prior to the execution and registration of the surety bond,
the Wilkins had provided conveyancer Blignaut, the fourth respondent, with a
special power of atto rney, as the undersigned “Mortgagor mentioned in the
annexed draft Surety Bond ( ‘the Bond’) … ‘to execute the surety bond … in
order to secure the payment of the indebtedness referred to in the Surety Bond
of [Glasfit] specially hypothecating the property therein described.”
[8] Whatever it was that was registered, and however this came about, Mr Wilkin
was retrenched and, after a varying loan agreement was concluded relating to
the terms of repayment, the Wilkins defaulted on their loan. Glasfit instituted an
action on the loan, and also sought an order declaring the property executable.
It attached the Borgverband to its particulars of claim and alleged it was a first
mortgage bond. It also attached the special power of attorney and alleged it to
be a special power of attorney “to execute the mortgage bond”.
[9] The Wilkins pleaded prescription. They also pleaded that the loan agreement
should be voided for being contrary to the NCA. They pleaded this applied also
to the “surety mortgage bond”, as they termed the instrument. In a counterclaim,
they sought to have the loan agreement and the “surety mortgage bond ”
declared void ab initio and in the alternative alleged the loan to hav e been
reckless as understood in the NCA.
[10] The plea and counterclaim were delivered in 2021. Nothing further
happened in the action until this application was launched.
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LIS PENDENS
[11] In the answering affidavit, Mr Wilkin says the following:
“I am advised that it would not be competent to apply for an order declaring the
loan agreement and surety bond void in these proceedings , given that our
counterclaim is still pending in the main action.”
[12] The answering affidavit in the very next paragraph states that “in the
result, the relief sought by the Applicant is not competent …”. It is not clear
whether this is said because of the pending action proceedings or because of
all the preceding allegations relating to the alleged voidness of the loan
agreement and the attending bond. It appears the latter, rather than the former.
[13] The answering affid avit does not go any further in raising a plea of lis
pendens. It seeks the dismissal of the application with costs on a punitive scale,
not the stay of the application pending the determination of the action, the order
that would be appropriate if a plea of lis pendens were to be upheld.4
[14] In argument before me, Ms Lombard, for the Wilkins, made it clear that
a plea of lis alibi pendens was in fact being advanced. Mr Mundell did not
suggest I was precluded from upholding such a plea in light of the manner in
which it was obliquely raised in the answering affidavit. In Pink v Pink 1957 (4)
4 See the discussion of the principles in the full bench decision of Gerotek Test Facilities v New
Generation Ammunition (Pty) Ltd 2006 JDR 1009 (T) para [7].
7
SA 41 (T), Hiemstra J observed obiter that a court could take co gnisance of
parallel proceedings mero motu even in the absence of a plea of lis pendens.5
I don’t think it matters here – the issue is raised squarely enough in th e
answering papers.
[15] This issue was one of several debated with counsel. My concern was
that the question whether the loan agreement was invalid or not was live in the
action and live before me. The question whether the surety bond should fall if
the loan agreement fell, in terms of section 89(5) of the NCA, is live in the action
and liv e before me. This includes the scope of the definition of ‘mortgage
agreement’ in the NCA.
[16] We debated several interesting issues, the main one being whether the
bond that ended up potentially being rectified ought to be rectified also to make
it clear that it acted as a general covering bond that could also extend as
security for an enrichment claim, and how far one could stretch the doctrine of
mistake in seeking to ‘rectify’ a deed across principal parties, attorneys,
conveyancers and the registrar, to turn it into that which it was alleged it should
have been but mistakenly was not.
[17] I confess to some temptation to enter these debates in this judgment and
to rule on them finally.
[18] Ultimately, however, I concluded that, as Mr Mundell had to concede ,
any findings I make on the issues that were live both before me and before the
trial court would at least become the subject of issue estoppel in the action. I
5 At 42A.
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cannot determine the issues in this application properly without entering, fully
and with no clear sign of an exit , most of the issues that are live in the action,
which remains pending and which Glasfit has not withdrawn. That leaves this
application with no proper justification for having been b rought in the teeth of
the pending action, especially as it entails a factual d ispute that would require
addressing on the rules applicable to motion proceedings.
[19] Whatever one does with the rules of motion procee dings in assessing
this dispute, there is a serious lacuna in the evidence on why it was that Ms
Kruger drew the Borgverband and why it was that the power of at torney was
given with express reference to a surety bond, and how it came that an animal
that was legal nonsense was brought into this wor ld. Any assessment of the
evidence applying the rules of motion proceedings would, in light of my finding
as to the appropriate relief, end up being inappropriate for me to undertake, in
light of the fact that such evidence would end up being canvassed properly in
the action, assuming the action to continue with the pleadings being amended
as the parties see fit , and in light of the undesirability of suggesting factual
findings based on the affidavits filed in this application.
[20] For this reason, it is inappropriate for me to rule in any way on any of
these issues.
[21] In the circumstances, the usual order yielded by a successful plea of lis
pendens should follow, and the applicant should bear the costs of the
application.
[22] In the circumstances, the following order is made:
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(a) The application is stayed pending the final resolution of the action instituted
under case number 2021/16415.
(b) The applicant is to pay the costs, on scale B.
______________________
FRANK SNYCKERS
ACTING JUDGE
Heard: 26 August 2025
Judgment: 28 August 2025
For the applicant: A R G Mundell SC
Instructed by: VDD Attorneys, Randburg
For first and second respondents: N Lombard
Instructed by: Stephanie Aproskie Attorneys, Randburg