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FORM AFILING SHEET FOR EASTERN CAPE JUDGMENT
ECJ NO: IN THE HIGH COURT OF SOUTH AFRICA(SOUTH EASTERN CAPE LOCAL DIVISION) PARTIES: MARTHINUS JACOBUS JANSE VAN VUUREN Applicant And
ANDREW FRENSCH BOSHOFF 1st
Respondent THE REGISTRAR OF DEEDS 2nd
Respondent LISA NATALIE BOSHOFF 3rd
Respondent ANDRE BLOM 4th
Respondent REFERENCE NUMBERS -
• Registrar: 3439/2004
DATE HEARD: 16 November 2004
DATE DELIVERED: 26 November 2004 JUDGE(S): SANDI J LEGAL REPRESENTATIVES -Appearances:
• for the Appellant: A BEYLEVELD • for the Respondent: EAS FORD SC
Instructing attorneys:• Applicant: OOSTHUIZEN, HAZELL AND WILMOT • Respondents: RUSHMERE NOACH AND PARTNERS
IN THE HIGH COURT OF SOUTH AFRICA(SOUTHEASTERN CAPE LOCAL DIVISION)
CASE NO: 3439/2004
In the matter between:
MARTHINUS JACOBUS JANSE VAN VUUREN Applicant
And
ANDREW FRENSCH BOSHOFF First Respondent
THE REGISTRAR OF DEEDS Second Respondent
LISA NATALIE BOSHOFF Third Respondent
ANDRe BLOM Fourth Respondent
JUDGMENT
SANDI, J:
1) In this matter the applicant seeks an interim interdict prohibiting the
first, second and third respondents from alienating the property known
as 16 Kromme River Estate to any person other than the applicant,
pending an action for specific performance of the terms of the deed of
sale, to be instituted by the applicant.
2) The application is opposed by the first and third respondents. The
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fourth respondent abides the decision of the Court. There is no
opposition from the second respondent.
3) The first and third respondents are husband and wife and are the only
trustees of the Boshoff Family Trust which owns the immovable
property known as 16 Kromme River Estate, St Francis Bay.
4) On 14 September 2004 the first and third respondents, acting in their
personal capacities, offered to purchase immovable property known as
1184 Esmaralda Street, belonging to one Bowker. The following was
made a condition of that sale agreement:
“This sale is subject to the sale of no. 16 Kromme River Estate by no later
than 30/10/2004.”
The deed of sale was signed by the first respondent above the words
“the purchaser” and by the third respondent above the words “the
purchaser’s spouse”.
5) On 24 September 2004 the applicant and the first respondent, AF
Boshoff, acting in his personal capacity, entered into a deed of sale in
terms of which the first respondent sold the immovable property known
as 16 Kromme River Estate, St Francis Bay to the applicant subject to
the following conditions:
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“8.1 This offer is subject to the suspensive condition that the purchaser is
able to raise a loan of R800 00000 (eight hundred thousand rand) upon
security of a first mortgage over the property at prevailing bank rates and
conditions.
8.2 Should such loan not be granted on or before 4 October 2004 or such
extended period as the seller in his sole discretion may in writing allow, then
this agreement shall be of no force and effect. The parties agree that this
provision is inserted for the benefit of the purchaser only who shall be entitled
at any time prior to the expiry of the aforesaid period by notice in writing to
the seller, to declare this sale unconditional and as having taken effect on the
terms herein contained.”
6) On 1 October 2004 ABSA Bank sent a facsimile transmission to the
applicant in which the following is stated:
“We are pleased to advise that your application for a home loan on the above
mentioned property has been approved in principle.
It is important to note that should any circumstances subsequently arise
which could prejudice this agreement and our security prior to registration we
reserve the right to reconsider our decision.
The above mortgage finance has been approved subject to our normal
lending criteria which will follow in due course as well as the following
conditions: satisfactory bank valuation of R820 000.”
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7) On 6 October 2004 ABSA Bank sent to the applicant a communication
titled “letter of final grant” in which it advised that the bond had been
approved.
8) On 6 October 2004 the first respondent’s attorney addressed a letter to
the applicant advising that the agreement of sale entered into between
the applicant as purchaser and A F Boshoff as seller had lapsed in that
the suspensive condition had not been complied with by the applicant
inasmuch as the loan referred to in paragraph 8.2 of the deed of sale
had not been granted on or before 4 October 2004 and that the
approval of the loan in principle was not in compliance with the
suspensive condition.
9) In reply to the above letter the applicant’s attorney advised that “the
suspensive condition was fulfilled in that the bond applied for by the
purchaser in terms of the relevant clause, which is for the benefit of the
purchaser and not the seller, was granted timeously”.
10) Thereafter the applicant launched the present proceedings against the
first respondent in his personal capacity.
11) On 2 November 2004 the applicant sought and was granted leave as a
matter of urgency to join, inter alia, the first and third respondents in
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this application in their capacities as trustees of the Boshoff Family
Trust.
12) It is common cause that the applicant was never told by the first
respondent that the property in question belonged to the trust.
13) In opposition to the present application the first respondent has filed a
detailed affidavit in which his defence is set out. The third respondent
has filed a short affidavit confirming the correctness of the first
respondent’s affidavit insofar as it relates to her.
14) The first issue raised by the first and third respondents’ Counsel, Mr
Ford SC, is that the two trustees had to act jointly in concluding the
sale agreement unless the trust deed provided otherwise.
15) In the present matter the third respondent appended her signature on
the deed of sale as a witness to the signature of the third respondent
(described therein as “seller”). She did so even though below the
seller’s signature provision is made for the seller’s spouse to sign.
Above the space provided for the signature of the seller’s spouse the
following printed words appear: “I, the spouse of the seller, hereby
consent to the aforegoing terms and conditions and by my signature
agree to be personally bound hereto”. As already stated the third
respondent left the space below these words blank.
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16) In D’Arcy v Blackburn, Jeffereys & Thorp Estate Agency 1985 (2) SA
178 (E) at 181D one of the purchasers of immovable property did not
append his signature in the space provided for in the deed of sale but
did so elsewhere in the document. The Court held that:
“This section (referring to s 2 (1) of Act 68 of 1981) requires that any deed of
alienation must be signed by the parties thereto or by their agents acting on
their written authority. It is however clear from cases such as Brack v
Citystate Townhouses (Pty) Ltd 1982 (3) SA 364 (W) that not every signature
of the parties appearing on such a document would satisfy the provisions of
the statute. In order to comply with the statute it must appear from the
document itself that the parties thereto appended their signatures in such a
way and at such a place as to indicate that they did so as a token of
execution.”
17) There is no suggestion in the papers by the applicant or any of the
parties, including the third respondent, that the third respondent
appended her signature in any other capacity than as a witness. Had
she intended to do so, she would in all likelihood have signed in the
blank space above the words “seller’s spouse”. That being so there is
no evidence that she intended to append her signature on the deed of
sale as a “token of execution”.
18) In Niewoudt and Another NNO v Vrystaat Mielies (Edms) Bpk 2004 (3)
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SA 486 (SCA) at 494D it was held that trustees have to act jointly and
that the ambit of authority conferred by a trust deed is not a matter of
“internal management” but is a matter of substance.
At 494G the judgment goes on to say that:
“What does need to be emphasised is that even if the Turquand rule is extended to
business trusts, and even if a trust deed were to provide that the trustees could
delegate their powers to one of their number, the Turquand rule would without more
be of no assistance to third parties. This is because a third party would not be entitled
to assume, merely from the fact that one trustee can be authorised to exercise the
powers of all of them, that such authorisation has in fact been given.”
19) In the absence of the signature of the third respondent in her capacity
as trustee and as a token of execution of the deed of sale the first
respondent would, at best for applicant, have been acting as agent for
the trust. In that event section 2 (1) of the Alienation of Land Act no. 68
of 1981 would require written authority to act as such agent. No such
written authority exists, nor has it been contended on behalf of the
applicant that it does.
20) In Pretoria East Builders CC and Another v Basson 2004 (6) SA 15
(SCA) the second appellant, Infogold Investments 56 CC, was the
registered owner of the immovable property on which Pretoria East
Builders CC (the first appellant) built a house. One Mr Van Schalkwyk
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was the sole member of both Close Corporations. Mr Van Schalkwyk,
acting in his capacity as member of Pretoria East Builders CC,
appointed his sister, Ms Badenhorst, as the project manager to
oversee the development. It was part of Ms Badenhorst’s mandate to
make arrangements to market the property in question. Ms
Badenhorst, acting on behalf of Pretoria East Builders CC sold the
property in question to the respondent.
21) In that matter it was argued that Van Schalkwyk, as sole member of
the two Close Corporations, knew that Badenhorst sold Infogold’s
property and that Infogold must be taken to have known all along that
Pretoria East Builders sold its property to the respondent.
The Court held, with reference to PlasconEvans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E – 635C that
because it was dealing with motion proceedings, it was not permissible on
the papers to go behind the evidence of Van Schalkwyk and Ms
Badenhorst that at no stage was Ms Badenhorst authorised to act on
behalf of Infogold.
Further the Court held that the Court a quo should not have issued an
order for specific performance because such an order could not be carried
out.
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22) In the present matter the trust’s name is reflected nowhere in the deed
of sale to indicate its involvement in the contract. And the evidence of
first and third respondents, which has to be accepted for the purpose of
this application, is that the first respondent was not authorised by the
trust to sell its property and to sign the deed of sale.
23) On the face of the deed of sale the offer to purchase was made to the
first respondent in his personal capacity and not to the trust and the
identity of the trust does not appear ex facie the deed of sale.
24)On this aspect of the case therefor the applicant cannot succeed.
25) The second leg of Mr Ford’s argument is that the applicant did not
comply with the suspensive condition of the deed of sale.
26) On 1 October 2004 ABSA Bank advised the applicant that the loan
had been approved in principle. Thereafter the property was valued
and a final approval of the loan was granted after the cutoff date, i.e. 4
October 2004. On the other hand the contract is subject to the
suspensive condition that “the purchaser is able to raise a loan”.
27) In Firstrand Bank Limited v Jaypee Properties (Pty) Ltd 2002 (2) SA
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384 (W) at 390B it was held that the words “in principle” have a “
clear connotation in law and, in their primary sense, they import no
more than a ‘statement of policy, the implementation of which is left,
over for later decision’ “. See too the cases referred to therein.
28) In Gallic Living (Pty) Ltd v Belo 1980 (1) SA 366 at 371C the following
was said:
“It must be remembered that the effect of the suspensive condition in the
deed of sale was that the sale of the property was not made subject to the
granting of a bond by the building society, but only to its approval in principle.
That distinction should not be overlooked. The condition is not concerned
with the question whether or not a binding contract came into being between
the building society and the respondent. It is concerned only with the stage at
which the contract of sale between the first applicant and the respondent
became effective.”
29) In this matter it was required of the purchaser to be able to raise a loan
before the cutoff date.
30) It is clear from cases such as De Wet v Zeeman 1989 (2) SA 433
(NKA) at 437EG; Remini v Basson 1993 (3) SA 204 (N) at 210DF;
and Property Girl BK v Joubert NO en andere [1999] 1 All SA 18 (T)
that what was required of the applicant was the actual obtaining of a
loan (“verkryging daarvan”) and not only an approval in principle. In
other words a loan agreement had to be entered into between ABSA
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Bank and the applicant. This had not happened by 4 October 2004.
31) The case of Dharsey v Shelly 1995 (2) SA 58 (C) on which applicant’s
counsel relies is distinguishable from the present matter. In that matter
the Court found as a fact that the suspensive condition was timeously
fulfilled. The date on which the loan had to be granted was extended to
3 April 1992 and a valuation of the property was done on 30 March
1992.
32) In this matter the approval of the loan in principle was subject to the
requirement that the property be valued. The approval of the loan in
these terms does not constitute a loan as envisaged in the deed of
sale. The prior requirement of the valuation of the property had to be
fulfilled. See Graham NO v Trackstar Trading 363 (Pty) Ltd [2003] 1 All
SA 181 (SECLD) at 205 para.8.
33) The letter from ABSA Bank dated 1 October 2004 and approving the
loan in principle states clearly that the “TOB (meaning “terms of
business”) must be accepted within 24 hours at above mentioned
address please”. In his affidavit Michael Edward Alphen, the Home
Loans Regional Manager of ABSA Bank, says that “the bank requires
the terms of business to be accepted expeditiously before it will
commence incurring costs with regard to the enquiries to be made in
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order to provide final approval for the loan finance.”
Alphen states further that the approval of the loan in principle is not
binding on the bank to grant a loan, the granting of which is in its entire
discretion after all the information required, including a satisfactory
valuation, have been provided. Indeed in the letter dated 1 October
2004 the bank specifically reserved the right to reconsider its decision
in certain circumstances.
34) There is no indication on the papers that the terms of business were
ever accepted by the applicant prior to the expiry of the relevant time
period. In my view the applicant has failed to establish the fulfilment of
the suspensive condition.
35) In dealing with the issue of an interim interdict pending the outcome of
an action the correct approach is that stated in Spur Steak Ranches
Ltd v Saddles Steak Ranch 1996 (3) SA 706 (C) at 714E as follows:
“The proper approach is to take the facts set out by the applicants together
with the facts set out by the respondents, which the applicants cannot
dispute, and to consider whether having regard to the inherent probabilities
the applicants should, not could, on those facts obtain final relief at the trial.
It is also necessary to repeat that although normally stated as a single
requirement, the requirement for a right prima facie established, though open
to some doubt, involves two stages. Once the prima facie right has been
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assessed, that part of the requirement which refers to the doubt involves a
further enquiry in terms whereof the Court looks at the facts set up by the
respondent in contradiction of the applicant’s case in order to see whether
serious doubt is thrown on the applicant’s case and if there is a mere
contradiction or unconvincing explanation, then the right will be protected.
Where, however, there is serious doubt then the applicant cannot succeed.”
36) Applying this approach to the facts of the present matter it is quite
clear that no prima facie right to claim transfer of the property on the
basis of a valid deed of sale has been established and the applicant
has failed to show that the suspensive condition has been fulfilled.
37) In the circumstances the application is dismissed with costs.
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B. SANDIJUDGE OF THE HIGH COURT
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