IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: A140/2024
Date of hearing: 18 February 2026
Date delivered: 5 March 2026
DELETE W HICHEVER IS NOT APPLICABLE
(1) REPORTABLE: ¥~/NO
(2) OF INTEREST TO OTHERS JUDG ES: Y~NO
(3) ~D
... >..t~ .. t.i~ ....
DATE
In the application between:
COMPANY UNIQUE FINANCE (PTY) LTD
and
RESIDUAL DEBT SERVICES LTD
THE CHIEF REGISTAR OF DEEDS
THE PRUDENTIAL AUTHORITY
THE MINISTER OF FINANCE
JUDGMENT
Appellant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
1
"'
SWANEPOEL J:
Introduction
[1] This is an appeal against an order granted by Barit AJ on 20
January 2023. The appeal is with the leave of the court a quo. in the
following terms (I summarize):
[1.1] The arbitration appeal award granted on 22 December
2020 was made an order of court;
[1.2] Furthermore, it was declared that:
[1.2.1] Specific immovable properties (as listed in
Annexures FA 22.1 to 22.8 of the founding affidavit) were
transferred from the first respondent ("RDS") to the
appellant ("CUF") on 25 October 2004, by virtue of the
provisions of section 54 of the Banks Act, 94 of 1990 ("the
Act");
[1.2.2] The rights and obligations of RDS as
mortgagee in respect of the mortgage bonds listed in
Annexures FA 23.1 to 23.3 were transferred from RDS to
CUF in terms of section 54 of the Act on 25 October 2004;
[1.2.3] In addition to the properties and mortgage
bonds listed in annexures FA 22 and 23, any further
rights and obligations of RDS arising from any immovable
2
properties and mortgage bonds registered in any Deeds
Office in South Africa were transferred to CUF in terms of
section 54 of the Act on 25 October 2004;
[1.3] The second respondent was ordered to cause the title
deeds of the immovable properties listed in Annexures
FA 22 and 23, and any other that remained registered in
the name of the applicant to be endorsed to reflect that
the properties and the obligations arising from the
mortgage bonds had been transferred from RDS to CUF
on 25 October 2004;
[1.4] CUF must pay the costs of the application.
Background
[2] RDS is the erstwhile The African Bank Ltd ("the Bank" or "RDS"),
having been renamed on 4 April 2016. The dispute between these parties
has its origin in the financial woes experienced by the Bank in the early
to mid 1990's, resulting in it being placed under curatorship in 1995.
During 1998 Theta Group Ltd ("Theta") acquired 100% of the shares in
the Bank. Theta's main aim was to retain the Bank's banking licence,
whilst simultaneously relinquishing all risk in the Bank's debtors' book.
The Government accepted liability for a portion of the debtors' book,
which became known as the "Government" book. During 1998 an
agreement ("the 1998 agreement") was entered into between Theta and
the Bank's shareholders which incorporated these terms.
3
[3] In terms of the 1998 agreement the Bank's debtors' book was ring
fenced within the Bank. The "ring-fenced business" was then described
as:
"1.32.1 all assets and all contracts and securities and general and
specific provisions relating to the debtors' book; ...
1.32.3 all income and expenses relating to the running and liquidating of
the debtors' book; ...
1.32.6 the management of and all risks and benefits relating to the
Government book; and ... "
[4] The Government book was defined in the 1998 agreement as:
"the loans and advances of the [Bank] for which the Government has
assumed responsibility (including all concomitant liabilities and
undertakings in respect of such book); and ... "
[5] A further share agreement was entered into in 1999, but I do not
believe that it is relevant to this judgment. Subsequent to the parties
entering into the 1998 agreement, CUF was appointed to manage the
ring-fenced business through its division, Loan Management Services.
[6] On 20 November 2003 the sellers in the 1998 transaction (also
known as "the Consortium") entered into a third agreement ("the 2003
agreement ") with various parties, including CUF, in terms of which CUF
acquired the ring-fenced business from the Bank. The transaction
4
resulted in the Bank disposing of a major part of its assets. The
transaction was subject to the condition precedent that the Minister of
Finance approve of the transaction in terms of section 54 of the Banks
Act, 94 of 1990. On 2 December 2003 the Bank submitted an application
in terms of section 54 to the Minister. The final condition precedent was
fulfilled on 25 October 2004, which then became the effective date.
[7] The Government book became the subject of a dispute between
the parties. CUF took the stance that the Government book was not
included in the ring-fenced business. RDS took the opposite view. The
cause of the dispute lies in the fact that the Government book comprises
of a large number of immovable properties that have, over time, attracted
substantial liabilities which CUF does not wish to assume.
[8] The specific terms of the 2003 agreement are not strictly relevant
to this judgment , as the interpretation of what was meant by the 'ring
fenced business' has been determined on arbitration, as I explain
hereunder. Suffice it to state that the agreement provided for the transfer
of the ring-fenced business from the Bank to CUF. The crux of the
agreement is in clause 5:
"5.1 Subject to Clause 8.3, with effect on the effective date, African
Bank shall be deemed to have ceded and transferred all its right,
title and interest in and delegated all its obligations in respect of
the ring-fenced business to [CUF]; ....
[9] The ring-fenced business was defined as:
5
"1.20 the business of running and liquidating the debtors' book, which
comprises, inter alia;-
1.20.1 all assets and all the contracts and securities relating to
the debtors' book, including, but not limited to, mortgage
bonds, suretyships, collateral security and insurance
policies (including all long-term and short-term policies)
securing the debtors' book and any other assets forming
part of the ring-fenced business, properties in possession
arising out of security held in the debtors' book and leases
associated with the debtors' book; ...
1.20.6 the management of and all risks and benefits relating to
the Government Book; and ...
including the extension of such business in the manner referred
to in Clause 2.4 of this agreement and all and any business
conducted by the managers of the ring-fenced business or LMS
in respect thereof, whether before or after the implementation
date."
The arbitration
[1 0] The parties continued to disagree on whether the Government
book properties were included in the ring-fenced business, resulting in
RDS referring the matter to arbitration in accordance with an arbitration
clause in the 2003 agreement. In the arbitration RDS sought the following
material relief:
6
[10.1] An award declaring that the ring-fenced business
acquired by CUF in terms of the 2003 agreement comprised of the
entire mortgage and asset-based lending business conducted
within the Bank, including the Government Book;
[10.2] An award that CUF must take transfer, at its cost, of all
properties and securities that form part of the ring-fenced business.
[11] RDS essentially claimed for specific performance of the 2003
agreement; namely, that CUF should take transfer of all of the immovable
properties, including those related to the Government Book. CUF denied
the RDS' interpretation of the agreement, and also raised a plea of
prescription , contending that the claim for specific performance had
become prescribed.
[12] On 5 October 2020 the arbitrator (Nugent J) held that the various
agreements , but especially the 2003 agreement, clearly distinguished
between the debtors' book and the Government Book, and that the latter
was not included in the ring-fenced business. Having made that finding,
the arbitrator did not consider the prescription plea. As a result, the claim
was dismissed.
[13] RDS then referred to matter to appeal before an arbitration appeal
tribunal. The appeal tribunal disagreed with the arbitrator on the
interpretation of the agreements. It said that
7
"It seems to us that the governing effect of clause 5 of the 2003
agreement, which the Arbitrator rightly characterized as its "core", was to
transfer the Bank's entire interest in the ring-fenced business to CUF.
Without derogating from the general operative import of this provision,
clause 5.2 specifically includes 'the debtor's book' in what is transferred.
In our view, the Agreement, and its 1998 predecessor ('the main
agreement'), mean to include, and do include, within the 'debtor's book'
the entirety of the debts owed to the Bank."
[14] That find ing required the arbitration appeal tribunal to consider the
prescription plea . It said the following:
"This conclusion makes it necessary for us to consider CUF's plea of
prescription. We see no answer to it. It is plain that RDS' Prayer 2, an
order 'directing that CUF take transfer at its cost. ... , of all properties and
securities that formed part of the ring-fenced business' is an order for the
specific performance of the contract and entailed enforcement of a
debt. .. "
[15] Although the operation of section 54 of the Act was canvassed
obliquely before the arbitrator and the appea l tribunal, it was not an aspect
that either was required to decide upon. The tribunal said the following in
respect of the declaratory order:
"[The respondent] contended that it was nevertheless entitled to the
declaratory it sought in Prayer 1, which the Arbitrator refused to grant,
and whose grant CUF, on the differing interpretation of the pertinent
8
agreements, had resisted all along. It contended, further, that attaining
this relief would represent substantial success for it on appeal.
We agree. The claim is based on the admitted allegations in RDS'
Statement of Claim read with section 54 of the Banks Act. That claim is
not one for a debt, and RDS' replication to CUF's special plea
accordingly covers the issue, albeit obliquely. RDS persuasively
suggested, though it is not necessary for us to decide this point, that,
with Prayer 1 in hand, it could persuade the Registrar of Deeds to
endorse the title deeds in issue, thus achieving, without registration what
it has sought all along, namely that CUF take responsibility for what it
agreed to undertake in the 2003 agreement."
(16] The appeal tribunal, consequently , granted the declaratory order sought
by RDS, but dismissed the claim for transfer of the properties.
Application before the Court a quo
[17] Notwithstanding the findings of the appeal tribunal, CUF refused to
allow the title deeds of the properties to be endorsed to reflect its
ownership of the properties. As a result, RDS brought the aforementioned
application before Barit AJ. It sought an order (in summary) that:
[17.1] the arbitration award be made an order of court;
[17 .2] a declaratory order be granted that the properties listed
in annexures "FA 22.1 to 22.8 were transferred to CUF on 25
October 2004 by operation of law in accordance with the provisions
of section 54 of the Act;
9
[17.3] a declaratory order be granted that all the rights and
obligations of RDS as mortgagee in the mortgage bonds listed in
annexures "FA 23.1 to 23.3 were transferred to CUF on 25 October
2004 by operation of law in accordance with section 54;
[17.4] a declaratory order be granted that in addition to the
properties and mortgage bonds listed in annexures FA 22 and 23,
all other properties registered in RDS' name, and the rights and
obligations of RDS as mortgagee in any Deeds Office on 25
October 2004 were transferred to CUF on that date, by operation
of section 54;
[17.5] the Registrar of Deeds be directed to endorse all title
deeds of the properties listed in annexures FA 22 and 23, as well
as all other properties that remain in the name of RDS, in order to
reflect the transfer of the properties, and the rights and obligations
under the mortgage bonds , to CUF on 25 October 2004.
[18] Having heard the matter, Barit AJ granted the order set out in
paragraph 1 above. It is against that order that the appeal lies.
[19] In the court a qua RDS argued that CUF had become owner of the
properties , and holder of the rights and responsibilities as mortgagee, by
operation of section 54 of the Act on 25 October 2004. Section 54 relates
to the amalgamation of banks, and, as in this case, the transfer of assets
and liabilities of a bank to another bank or to another person. The
following subsections of section 54 are relevant:
10
"(1) The Minister must consent, in writing, and conveyed through the
Authority, to-
(a) an amalgamation, merger or arrangement referred to in
Chapter 5 of the Companies Act and which involves a bank
as one of the principal parties to the relevant transaction; and
(b) an arrangement for the transfer of more than 25% of the
assets, liabilities, or assets and liabilities of a bank to another
person ...
(2) The Minister shall not grant his or her consent referred to in
subsection (1) unless-
(a) ..... .
(b) ... ·•
(c) in the case of a transfer of assets, liabilities or assets and
liabilities referred to in subsection (1) such transfer is effected
to another bank or to a person approved by the Authority for
the purpose of said transfer.
(3) Upon the coming into effect of a transaction effecting the
amalgamation of one bank with another bank as contemplated in
subsection (2) (b) or effecting the transfer of such part of the
assets, liabilities or assets and liabilities as approved in terms of
subsection (1) or (1 B) of one bank to another bank or person as
contemplated in subsection (2) (c) or (2A) (c)-
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(a) all the assets and liabilities of the amalgamating banks or, in
the case of such transfer of assets, liabilities or assets and
liabilities as approved in terms of subsection (1) or (1 B),
respectively, those assets, liabilities, or assets and liabilities
of the transferor bank that are transferred in terms of the
transaction, shall vest in and become binding upon the
amalgamated bank or, as the case may be, the bank or
person taking transfer of such assets, liabilities or assets and
liabilities; ...
(8) ..... every officer or person in charge of a deeds registries or any
other office, if, ....
(a) ... there is registered any title to property belonging to, or
any bond or other right in favour of; ...
any bank which has amalgamated with any other bank, or any
bank which has transferred all or part of its assets, liabilities or
assets and liabilities referred to in subsection (1) or (1 B) to any
other bank or person shall, if satisfied-
(i) that the Minister has consented in terms of subsection (1)
to the amalgamation or transfer or that the Authority has
consented in terms of subsection (1 B) to the transfer; and
(ii) that such amalgamation or transfer has been duly
effected;
and upon production to such .... officer or person of any relevant
deed ..... . make such endorsements thereon... as may be
12
necessary to record the transfer of the relevant property, bond or
other right ... to the bank or person that has taken transfer of the
said assets, liabilities or assets and liabilities in question."
[20] On an interpretation of section 54(8) of the act, it places a statutory duty
on Second Respondent to endorse all such title deeds under its control or placed
before it to record the transfer of ownership of affected properties, once Second
Respondent is satisfied that the requirements of section 54 (10) of the act have
been complied with.
[21] RDS contends before us that ownership of the properties vested in
CUF by operation of law from the date upon which the final condition
precedent was fulfilled, including approval for the transfer by the Minister,
namely 25 October 2004. It says that the application was aimed at
obtaining a declaratory order to that effect, and at securing the
endorsement by the Registrar of Deeds on the title deeds of the legal fait
accompli.
[22] CUF submits the following :
[22.1] That RDS seeks to impose a substantial financial
obligation on CUF, in that CUF would become responsible for the
liabilities associated with the immovable properties, and that these
liabilities constitute a debt in terms of the Prescription Act, 68 of
1969 ("the Prescription Act") which has become prescribed.
13
[22.2] That CUF would be required to take certain steps to
secure the endorsement of the title deeds, which also constitute a
debt, and which has become prescribed.
[22.3] That, to the extent that the Court a quo held that
obligations were imposed on CUF by virtue of its "special
contractual arrangements" with the respondent, it should have
concluded that those obligations are a debt in terms of the
Prescription Act that had prescribed;
[22.4] That the relief sought in the arbitration and in the court a
quo was for specific performance in terms of the 2003 agreement,
and to the extent that it had already been held by the Appeal
Tribunal that the contractual claim had prescribed, the Court a quo
was bound by that finding and was not entitled to make an order
for the endorsement of the title deeds.
[22.5] The application of section 54 (3) of the Banks Act was
ventilated at the arbitration. Having considered the operation of the
Banks Act, the Appeal Tribunal concluded that the claim had
prescribed, and that it was, therefore, no longer open to RDS to
seek to pursue the operation of section 54 of the Banks Act as a
new cause of action.
[22.6] The 'Henderson principle'1 requires a party to raise all
matters concerning its case in the same proceedings, and that it is
an abuse of process to raise in later proceedings such matter as
14
should have been raised before. As RDS had not raised the
section 54 claim in the arbitration, it was not open for it to raise it
in the application.
[23] Three main themes in CUF's case have to be explored. Firstly,
what is the exact nature of RDS' claim in the application, and is it a
contractual claim as CUF argues? Secondly, has RDS' claim prescribed?
Thirdly , is RDS entitled to now seek an order in terms of section 54 of the
Act, considering it did not do so in the arbitration, or is it barred from doing
so by the Henderson principle?
The nature of RDS' claim
[24) RDS' claim in the arbitration was clearly couched as a contractual
claim for specific performance of CUF's obligations arising from the 2003
agreement. Ordinarily, a sale of an immovable property only results in
transfer of ownership upon registration of transfer in the Deeds Office.
Section 54 of the Act, however, provides for the transfer of ownership by
operation of law. In Teemed (Pty) Ltd and Others v Nissho /wai
Corporation and Another2 the Court held (in the context of the transfer of
rights by operation of Japanese law):
"[21] As I see it, the resulting position is not materially different from
the one created by our own legislature in the case of an amalgamation
or takeover agreements between banks under s 54 (2) (b) of the Banks
Act 94 of 1990. In such event, s 54 (3) of the Act essentially provides that
all rights and obligations of the amalgamating banks or transferor bank
15
will vest in the amalgamated or transferee bank by operation of law. With
reference to the situation thus created by the legislature, it was held in
Absa Bank Ltd v Van Biljon and Another 2000 (1) SA 1163 (W) that the
substitution of the transferee bank (ABSA) as plaintiff in an action
previously instituted by the transferor bank (Bankorp) does not activate
the provisions of s 15 (2) of the Prescription Act. By virtue of s 54 (3) of
the Banks Act, so it was held, ABSA stepped into the shoes of Bankorp
and became the plaintiff by operation of law."
[25] In ABSA Bank (supra) the Court considered the effect of section
54 (3) on the question of ownership of an immovable property, and the
requirement in section 54 (8) for the endorsement of the title deeds. The
Court said:
"[38] There remains the argument of Mr Jonker on effect (sic) of s 54
(8) of the Banks Act. Mr Jonker submitted, with reference to Lief NO v
Dettman 1964 (2) SA 252 (A) at 267-70, that registration (endorsement)
of the bond was necessary in order to constitute a real right of security
in favour of ABSA, ie in the absence of endorsement ABSA Bank does
not have any security arising out of the two covering bonds.
[39] It is off course trite that, in order to have a real right in the
immovable property, registration is necessary. Mr Jonker submitted that,
having regard to the general principles underlying the registration of
cessions of the bonds, two steps are contemplated by s 54 (8) ie
39.1 the underlying agreement or causa for the transfer ; and
16
39.2 the implementation of the underlying agreement by the
endorsement by the Registrar of Deeds . ...
[40] Only when the Registrar of Deeds endorses the bond document
in terms of s 54 (8), so the submission goes, does ABSA have a real right
in the immovable properties. This, in my view, ignores the express
wording of s 54. One should approach s 54 on the basis that the
language used by the legislator should be read in its ordinary sense ....
[42] That means, in my view, that where one reads "the Trustbank of
Africa Limited" in any of the bonds, one is obliged, in terms of s 54, to
read ABSA Bank Limited."
[26] On a proper interpretation of section 54 of the Act, therefore , CUF
became the owner of the immovable properties on 25 October 2004. The
contractual rights created by the 2003 agreement have been fulfilled , and
CUF has assumed its obligations by operation of law. All that remains is
for Second Respondent to comply with its statutory obligation in terms of
section 54(8) of the act, namely to endorse the relevant deeds.
[27] CUF has submitted that RDS is seeking to introduce a new cause
of action based upon section 54 of the Act. That is not correct. Section 54
does not establish a cause of action. The 2003 transaction did so. Section
54 merely creates the mechanism by which the transaction is given effect
to. CUF's reliance on Ascendis Animal Health (Pty) Ltd v Merck Sharp
Dahme Corporation and Others3 is therefore misplaced.
17
[28] Although the relief sought in the arbitration was couched in
contractual terms, RDS' claim was, in truth, not a contractual claim. It's
claim was for a declaratory order, based on the application of section 54
to the 2003 agreement, stating what the true legal position is in respect
of ownership of the properties. Such a declaratory order is clearly
competent in terms of section 21 (1 )(c) of the Superior Courts Act, 2013.
Prescription
[29] In terms of section 10 (read with section 11) of the Prescription Act,
a 'debt' generally prescribes after three years. Although what constitutes
a 'debt' is not defined in the Prescription Act, it was held in Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd4 ("Eskom") that
a 'debt' is "that which is owed or due; anything (as money, goods or
services) which one person is under obligation to pay or render to
another '. In Desai NO v Desai and Others5 the Court seemed to espouse
a wider definition. However, the Constitutional Court has now explained
in Makate v Vodacom Ltd6 that the approach in Eskom is correct, and
that, to the extent that Desai suggests a wider definition, it is wrong. The
Constitutional Court held in Off-beat Holiday Club and Another v
Sanbonani Holiday Spa Shareblock Ltd and Others7 that a claim in terms
of section 252 of the Companies Act, 1973 was not susceptible to
prescription as it was not a debt under the Prescription Act. The Court
said8:
18
"The claim is a far cry from something owed or due, or an obligation to
pay money, deliver goods or render services to another. If anything, it is
the right to seek a judicial determination as to whether the applicants are
entitled to a statutory remedy, the entitlement to which is determined on
equitable grounds .... "
[30] I have dealt with CUF's submission above, that RDS' claim before
us is a contractual one. It is not. The contract has been fulfilled and
ownership of the properties has been transferred. In my view, the claim
for endorsement of the title deeds to reflect the correct legal position is
not a debt. It is not a claim for "that which is owed or due; anything (as
money, goods or services) which one person is under obligation to pay or
render to another" as described in Eskom (supra), and even though CUF
will attract substantial liabilities, it has already attracted these liabilities by
operation of law, by virtue of the provisions of section 54 (3) of the Act.
As has been held by the authorities mentioned above, not every obligation
constitutes a debt. In my view, therefore, there is no remaining debt
capable of prescribing.
The Henderson principle
[31) The Henderson principle requires a party to raise all matters in
litigation that are relevant to the determination of the case. The principle
is enunciated thus in Henderson: 9
"In trying this question , I believe I state the rule of the court correctly,
when I say, that where a matter becomes the subject of litigation in, and
19
of adjudication by a court of competent jurisdiction, the court requires the
parties to that litigation to bring forward their whole case, and will not
(except under special circumstances) permit the same parties to open
the same subject of litigation in respect of matter which may have been
brought forward as part of the subject of the contest, but which was not
brought forward, only because they have, from negligence,
inadvertence, or even accident, omitted part of their case. The plea of
res judicata applies, except in special cases, not only to points upon
which the court was actually required by the parties to form an opinion
and pronounce a judgment, but to every point which properly belonged
to the subject of the litigation, and which the parties, exercising
reasonable diligence, might have brought forward at the time."
[32] It was explained in the following manner in Janse van Rensburg
NO and others v Steenkamp and Another; Janse van Rensburg and
Others v Myburgh and Others 10:
"(29] In Arnold v National Westminster Bank PLC 91991] 3 ALL ER
41 (HL) at 48 j Lord Keith pointed out that, although Henderson's was
a case of action estoppel, the statement of the law that has been held
to be applicable also to issue estoppel. The learned Law Lord had
earlier referred (at 48e) to Brisbane City Council v Attorney-General for
Queensland [1978] ALL ER 30 (PC) ([1979]AC 411 at 35-36 (at 425
AC), where Lord Wilberforce said:
The second defence is one of res judicata. There has, off course, been
no actual decision in litigation between these parties as to the issue
involved in the present case, but the appellants invoke this defence in
20
its wider sense, according to which a party may be shut out from raising
in a subsequent action an issue which he could, and should, have
raised in earlier proceedings. The classic statement of this doctrine is
contained in the judgment of Wicram VC in Henderson v Henderson
(1843) 3 Hare 100 [1843-60] ALL ER Rep 378 and its existence has
been reaffirmed by this Board in Hoystead v Taxation Comr [1926] AC
155, [1925] ALL ER Rep 56. A recent application of it is to be found in
the decision of the board in Yat Tung Co v Dao Heng Bank [1975] AC
581. It was in the judgment of the board, there described in these words
(at 590): ' ... there is a wider sense in which the doctrine may be
appealed to, so that it becomes an abuse of process to raise in
subsequent proceedings matters which could and therefore should
have been litigated in earlier proceedings. This reference to 'abuse of
process' had previously been made in Greenhalgh v Mallard [194 7] 2
ALL ER 255 per Somervell LJ and their Lordships endorse it. This is
the true basis of the doctrine and it ought only to be applied when the
facts are such to amount to an abuse, otherwise there is a danger of a
party being shut out from bringing forward a genuine subject of
litigation."
[33) CUF submits that RDS should have raised the issue of section 54
in the arbitration , and having not done so, it was not open to RDS to do
so in new litigation. RDS' answer is that much of the relief that it sought
in the court a quo was aimed at the Registrar of Deeds, who was not, and
could not have been, a party to the arbitration. It could not, it submits,
have sought an order against the Registrar in the arbitration.
21
[34] RDS' argument may be correct in respect of paragraphs 5, 6 and
7 of the notice of motion. However, there is no reason why RDS could not
have sought the declaratory relief in paragraphs 2, 3 and 4 of the notice
of motion in the arbitration. RDS seems to suggest that in hindsight it
should have done so.
[35] The declaratory relief sought in paragraphs 2 and 3 of the notice
of motion seems, in my view, to have become academic, as there seems
to be no dispute any longer that ownership of the properties and the rights
and obligations of RDS as mortgagee transferred to CUF on 25 October
2004 by virtue of the operation of section 54(4) of the Act.
[36] The declaratory relief sought in paragraph 4 has also become moot
by virtue of the arbitration appeal tribunal's finding that all of the properties
in the debtor's book, including those in the Government Book, formed part
of the assets to be transferred, even those properties not yet identified.
[37] Even if the appeal against those orders had not been rendered
moot, I would nevertheless have held the view that this is one of the so
called "special cases" in which an exception should be made with regard
to the application of the Henderson rule. Should we uphold the appeal on
the Henderson principle, many scores of properties would remain
registered in RDS' name, whilst, as a matter of fact, CUF is the owner of
the properties.
[38] Such a situation is not in the interests of good public administration.
The very purpose of the registration process is to maintain an accurate
22
record of ownership of immovable properties. In my view, such a situation
should not be allowed to remain. A proper reading of Janse van Rensburg
NO (supra) shows that a Court should consider where the equities lie in
either refusing the claim on the Henderson principle, or allowing it to go
forward in the interests of justice. In my view, this is not a matter wherein
the Henderson principle should be applied. It is perhaps time for CUF to
do what the arbitration appeal tribunal said it should, namely that CUF
should "take responsibility for what it agreed to undertake in the 2003
agreement."
(39] It is apparent from the above that we have taken a different
approach to the matter than that taken by the Court a quo. We do not
agree with the Court a quo on much of its reasoning, but, as is trite, an
appeal lies against the order, not the judgment , and with regard to the
order itself , we agree with the Court a quo.
[40] In the premises, I make the following order:
The appeal is dismissed with costs on Scale C, including the
cost of senior counsel.
I agree:
C SWANEPOEL J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
23
NBAMJ
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
• I agree:
P A VAN NIEKERK J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
1 Wigram VC in Henderson v Henderson (1843) 3 Hare 100 [1843-60] ALL ER 378
2 Teemed (Ply) Ltd and Others v Nissho lwai Corporation and Another 2011 (1) SA 35
(SCA)
3 Ascendis Animal Health (Pty) Ltd v Merck Sharp Dahme Corporation and Others
2020 (1) SA 327 (CC)
4 Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd 1981 (3) SA 340
(A)
5 Desai NO v Desai and Others 1996 (1) SA 141 (A)
6 Makate v Vodacom Ltd 2016 (4) SA 121 (CC)
7 Off-beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock Ltd and
Others 2017 (5) SA 9 (CC)
8 At para (49]
9 Henderson v Henderson (1843) 3 Hare 100 (1843-60] ALL ER Rep 378 10 Janse van Rensburg NO and others v Steenkamp and Another: Janse van
Rensburg and Others v Myburgh and Others [2009] 1 ALL SA 539 (SCA)
Counsel for the appellant:
Instructed by:
Counsel for the first respondent:
Instructed by:
Heard on:
Judgment on:
Adv. A Mundell SC
Marie-Louise Bester Inc
Adv. N Maritz SC
Macroberts Inc
18 February 2026
5 March 2026
24