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
MPUMALANGA DIVISION, MBOMBELA
CASE: 1267/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
DATE 10 March 2026
SIGNATURE
In the matter between:
JOHANNES STEFANUS DU TOIT N.O. FIRST APPLICANT
(ID. NO.: 6[...])
[in his capacity as a trustee of the
Pomegranate Trust (IT000327/2016]
ROUVAUN HEYNS N.O. SECOND APPLICANT
(ID. NO.: 7[...])
[in his capacity as a trustee of the
Pomegranate Trust (IT000327/2016]
And
RAMCJE BELEGGINGS CC FIRST RESPONDENT
2
(REG. NO.: 1989/009021/23)
NEDBANK LIMITED (REG. NO.: 1951/000009/06) SECOND RESPONDENT
THE REGISTRAR OF DEEDS, MPUMALANGA, MBOMBELA THIRD RESPONDENT
DIEDERIK JOHANNES BISSETT FOURTH RESPONDENT
(ID. NO.: 5[...])
JURGENS JOHANNES PETRUS LUBBE FIFTH RESPONDENT
(ID. NO.: 7[...])
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date and time for hand -down is deemed to be 10 March
2026 at 16h00.
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
MANGENA AJ:
[1] This is an application for an order compelling and directing the First Respondent to
register a mortgage bond over the following properties, namely Remaining Extent of
Portion 3 of the Farm Edna 10 held by Deed of Transfer T27812/1989 and Portion 5 (A
portion of Portion 3) of the Farm Edna 10 held by Deed of Transfer T 227812/1989 in
favour of the applicant, Pomegranate Trust.
[2] The underlying agreement for the mortgage bond is a loan agreement concluded on
the 13 February 2017 in Mashishing between the trust and the first respondent. The
material terms of the agreement are that the trust will advance payment of R3000 000.00
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to the first respondent against registration of a mortgage bond over the above-mentioned
properties as security for the loan advanced.
[3] The applicant avers that it performed in terms of the agreement and is accordingly
entitled to the enforcement of the agreement by requiring the first respondent to honour
its contractual obligations by executing a mortgage bond over the properties.
[4] The first, fourth and fifth respondents oppose the application on various grounds. It
was argued that the transaction upon which the claim is based is a simulated transaction
and therefore not legally enforceable. It was further submitted on their behalf that Mr Du
Toit who deposed to the affidavit is in actual fact the person who advanced the funds to
the respondent and not the trust. To this end, Mr Lubbe who deposed to the opposing
affidavit said that Du Toit paid the money from the proceeds of the estate of his late wife.
It was contended that the estate of the late wife should be joined to the proceedings. It
was, however, not clear to me what the legal interest of the estate is in this matter. The
point in limine on non-joinder is dismissed
[5] In support of the argument that the transaction is simulated, it was submitted that Du
Toit is a member of the CC and his interests are held by another member. I was implored
to scrutinise the relationship of the role players carefully before arriving at the decision to
grant the relief sought.
[6] It was further submitted that there are liquidation proceedings pending against the
entity which are likely to affect the outcome of this case. It was urged on me to see this
application for what it is, namely an attempt to circumvent the liquidation proceedings
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and defeat a prescription claim which will be successfully raised against any claim for
monetary payment.
[7] There is simply no merit on any of the points raised. What is clear is that the parties
have concluded a legally binding agreement which required the respondent to register a
mortgage bond over the properties as security for the loan received. The agreement is
intact and there are no proceedings to set it aside nor has any of the respondents
advanced a cogent argument why it should not be enforced as valid and binding upon the
parties.
[8] For a start, no evidence was adduced by the respondents to support their version that
the transaction is simulated and disguised to appear real and genuine. On the papers
filed, the entity was experiencing financial difficulties and in need of capital to support its
business projects. Discussions were held to find money including approaching financial
institutions. Du Toit agreed to advance payment of R 3000 000.00 to be paid with
interest. As security for the loan, the first respondent agreed to register a mortgage
bond.
[9] It is established that for a court to declare a transaction a simulated one, it does not
have to look at any particular legislation but has to look on the facts of the particular
case.
[10] In CSARS v NWK 2011 (2) SA 67 (SCA) the test was stated as follows:
“[55] In my view the test to determine simulation cannot simply be whether there is
an intention to give effect to a contract in accordance with its terms. Invariably where
parties structure a transaction to achieve an objective other than the one ostensibly
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achieved they will intend to give effect to the transaction on the terms agreed. The
test should thus go further, and require an examination of the commercial sense of
the transaction: of its real substance and purpose. If the purpose of the transaction is
only to achieve an object that allows the evasion of tax, or of a peremptory law, then
it will be regarded as simulated. And the mere fact that parties do perform in terms of
the contract does not show that it is not simulated: the charade of performance is
generally meant to give credence to their simulation”. At para 55.
[11] On the facts as they appear to me, there was nothing dishonest or disguised about
this transaction. A disguised transaction was defined in Commission of Customs and
Excise v Randles, Brothers & Hudson Ltd , 1941 AD 369 as the one concluded with an
intended purpose to conceal the real agreement or transaction between the parties. The
parties wish to hide the fact that their real agreement or transaction falls within the
prohibition or is subject to tax, and so they dress it up in a guise which conveys the
impression that it is outside of the prohibition or not subject to tax. Such a transaction is
said to be in fraudem legis and is interpreted by the courts in accordance with what is
found to be the real agreement between the parties. See Roshcon (Pty) Limited v Anchor
Auto Body Builders CC and Others, 2014 (4) SA 319 (SCA) at para 10. The respondent did
not adduce any evidence to support the averment that the transaction was disguised and
or dishonest. There was not even a slight motive suggested for the contended disguise.
[12] As a further string to the bow, the respondents argued stridently that the matter has
prescribed in that a period of 3 years had lapsed since the agreement was concluded in
2017. Once again it is clear that not much thought was given to this defence because the
respondents have through their attorneys acknowledged their indebtedness to the
respondents have through their attorneys acknowledged their indebtedness to the
applicant and agreed to the registration of the bond subject to certain conditions. They
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have also offered to settle the loan in instalments. All of this had an effect that the
running of prescription was interrupted, and the first respondent remains obliged to
register a mortgage bond in favour of the applicant over the two properties. The plea of
prescription fails.
[13] The applicant is entitled to the costs and accordingly the first and fifth respondents
should be liable for them.
[14] Consequently, the application succeeds and the following orders are made:
14.1 The First Respondent is ordered and directed to register a mortgage bond in
favour of the Promegranate Trust, IT 327/ 2016 over the following properties,
namely Remaining Extent of Portion 3 of the Farm Edna 10, Registration Division,
JU, Province of Mpumalanga held by Deed of Transfer T27812/1989 and Portion 5
(A portion of portion 3 ) of the Farm Edna 10 , Registration Division JU, Province of
Mpumalanga, held by Deed of Transfer T227812/1989.
14.2 In the event that the first respondent and or its authorised members, fail to
sign all the requisite documentation to give effect to prayer 1 above, within 10 days
of being requested to do so by a duly designated Conveyancer appointed by the
applicant, the sheriff of this Honourable Court or his/ her designate , or deputy , is
hereby authorised to sign all the requisite documentation to give effect to order 1
above.
14.3. The first and fifth respondents are ordered to pay the applicant's costs on a
party and party scale B of the high court tariffs.
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______________________
M I MANGENA
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
APPEARANCES:
Attorneys for Applicant: Jacobs Roos Fouché Inc.
Office 105 East Block Sanlynn Office Park
Cnr. Alkantrand and Lynnwood Roads Pretoria
0081
Email: ruhann@jrflaw.co.za
Tel: 012 – 111 1804
Counsel for Applicants: M JACOBS
ROOM G-06, GROENKLOOF CHAMBERS
082 440 2393
mjacobs@gkchambers.co.za
Attorneys for Fifth Respondent: HVH Attorneys
Suite 106 Vicinity Square 12 Nel Street
Mbombela, Mpumalanga
1200
Email: doug@hvhatt.co.za;
alicia@hvhatt.co.za
Tel: 013 – 110 5733
Counsel for Fifth Respondent: JJ VENTER
ROOM 53, BROOKLYN ADVOCATE CHAMBERS
8
Cell: 072 592 7434
E-Mail: advjj@mpbar.co.za
Date of Hearing: 03 March 2026
Date of delivery: 10 March 2026