Badenhorst N.O and Others v Fraser and Others (5008/2021) [2021] ZAFSHC 319 (30 November 2021)

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

FREE STATE DIVISION, BLOEMFONTEIN

Case no: 5008/2021

In the matter between:

ADELINE

BADENHORST N.O.

1st Applicant

JOHANNES URBANUS BADENHORST N.O.

2nd Applicant

JOHANNES

DEWALDUS VAN DER BERG N.O. 3rd Applicant

(In their capacities as duly authorised trustees of the

STERKFONTEIN TRUST No IT343/2011)

and

HANNELIE

FRASER 1st Respondent

(Identity number: [….])

DIRK

JACKSON TERBLANCHE

2nd Respondent

(In his capacity as duly appointed executor in the estate

of the late JOHN MOIR FRASER)

THE REGISTRAR OF DEEDS, BLOEMFONTEIN

3rd Respondent

CORAM:

DAFFUE J

HEARD ON: 25 NOVEMBER 2021

DELIVERED ON: 30 NOVEMBER 2021

This judgment was handed down electronically by circulation to the parties’ representatives by email, and release to SAFLII. The date and time for hand-down is deemed to be 14:00 on 30 November 2021.

I

INTRODUCTION

[1] The mortgagors and one of the mortgagees of a mortgage bond registered over immovable property situated in the district of Fauresmith are at loggerheads about the mortgagors’ entitlement to cancellation of the mortgage bond.

II

THE PARTIES

[2] The trustees of the Sterkfontein Trust IT343/2011 (herein later referred to as “the Trust”), to wit Mrs Adeline Badenhorst, Mr Johannes Urbanus Badenhorst and Mr Johannes Dewaldus van der Berg, are cited as first, second and third applicants in this application. Mr Van der Berg is an attorney and an independent trustee of the Trust. Adv J Els appeared for the Trust, instructed by Phatshoane Henney Attorneys, Bloemfontein.

[3] Mrs Hannelie Fraser, Mr Dirk Jackson Terblanche, in his capacity as duly appointed executor in the estate of the late John Moir Fraser, and the Registrar of Deeds, Bloemfontein are cited as first, second and third respondents respectively.

[4] No relief is claimed against second and third respondents and consequently, they do not oppose the application. In fact, it is evident from Mr Terblanche’s supporting affidavits annexed to the applicants’ papers that he supports the application in his aforesaid capacity.

[5] Mrs Hannelie Fraser, the widow of the late John Moir Fraser (herein later referred to as “the deceased”) was represented by Adv DW Grewar, instructed by HJ Booysen Attorneys Inc, Bloemfontein.

III

THE RELIEF SOUGHT

[6] The applicants seek an order in terms whereof the first respondent be ordered and directed to sign the required consent to cancellation in terms of regulation 68(11) of the Deeds Registries Act (“the Deeds Act”)[1] required for the cancellation of Mortgage Bond B6265/2015 within 2 days from date of the order, alternatively and in the event of the first respondent failing to comply with the court’s order, that the Registrar of the Court be authorised to sign the consent on her behalf. Costs of the application on an attorney and client scale are also sought against the first respondent.

[7] During argument I pointed out to Mr Els that it is my understanding of regulation 68 that an application supported by an affidavit would also be required in so far as the aforesaid mortgage bond had been lost and that the application has to be published in a local newspaper.[2] He sought an amendment to include the words “and affidavit” after the word “cancellation” in prayers 2 and 3. Mr Grewar did not object thereto. I shall deal with this issue again infra.

IV

THE DEFENCE

[8] The first respondent avers that, contrary as claimed by Mr Terblanche in his capacity as the executor of the deceased estate, the applicants as mortgagors of Mortgage Bond B6265/2015 still owe her as mortgagee an amount of R384 072.41 and consequently, they are not entitled to cancellation of the mortgage bond.[3] I shall deal comprehensibly with this aspect during the evaluation of the evidence.

[9] The main objection to the manner in which the outstanding loan amount was calculated and eventually paid by the applicants centres around the applicants’ right to set off amounts in respect of certain grazing rights agreed upon in a lease agreement between the applicants and the deceased. More about this later.

V

THE UNDISPUTED FACTS

[10] The following facts are not dispute:

10.1 The three applicants are the trustees of the Trust in terms of letters of authority issued to them on 12 March 2020.

10.2 The Trust purchased the following property from the deceased and first respondent, who were married to each other in community of property, at a purchase price of R5.5 million which property was eventually registered in the name of the Trust on 29 October 2015 in accordance with Deed of Transfer T13129/2015:

“RESTANT VAN DIE PLAAS DIEPFONTEIN 346, DISTRIK FAURESMITH, PROVINSIE VRYSTAAT

GROOT: 739,7079 HEKTAAR.” (herein later referred to as “the property.”)[4]

10.3 A written loan agreement was entered into between the deceased and first respondent as moneylenders, referred to merely as “uitlener” on the one hand and the Trust, represented by the second respondent, in order to finance the balance purchase price of the property in the amount of R1 650 000.00.[5]

10.4 The loan agreement was for a period of three years and the Trust was obliged to register a second mortgage bond as security over any of its immovable properties, alternatively the “RESTANT van die plaas STERKFONTEIN 346, distrik FAURESMITH, provinsie VRYSTAAT.”

10.5 It is clear that the reference to the farm Sterkfontein is a mistake as explained in the replying affidavit and bearing in mind the registration of the mortgage bond referred to infra.

10.6 Interest was payable on the capital annually in arrears at the rate of 10% per annum. It was specifically agreed that the capital of the loan together with interest thereon would be payable as follows:

“6.1 Die huur verskuldig deur die UITLENER aan die LENER ten opsigte van alle weiveld oor die genoemde RESTANT van die plaas STERKFONTEIN 346, distrik FAURESMITH sal as a skuldvergelyking tussen die partye afgetrek word van die betaling, en

6.2 Alle paaiemente deur die LENER ingevolge hierdie OOREENKOMS aan die UITLENER verskuldig –

6.2.1 sal sonder verdere aftrekking van enige aard gemaak word en sal vry wees van bankkoste en ander heffings;

6.2.2 sal gemaak word by die UITLENER se adres soos uiteengesit in klousule 9.1.1 of by sodanige ander adres as wat die UITLENER mag bepaal;

6.2.3 sal eerstens aangewend word ter delging van rente en daarna ter delging van kapitaal.

6.3 Betalings sal geskied soos per skedule in die bylae hiertoe aangeheg.”

10.7 I repeat that the reference to “RESTANT van die plaas STERKFONTEIN 346” is a mistake as is inter alia clearly indicated in Deed of Transfer T13129/2015 as well as Mortgage Bond B6265/2015 registered simultaneously on 29 October 2015.[6]

10.8 Mortgage Bond B6265/2015 contains relatively similar terms to that of the loan agreement pertaining to payment. I only quote the relevant portion pertaining to set-off:

“2.

BETALINGS

Die LENING tesame met rente daarop sal as volg betaal word naamlik:

2.1 Die huur verskuldig deur die Verbandhouer aan die Verbandgewer kragtens ‘n huurkontrak geteken 21 Julie 2015 ten opsigte van alle weiveld oor die RESTANT van die plaas STERKFONTEIN 346, distrik FAURESMITH, sal as ‘n skuldvergelyking tussen die partye afgetrek word van die betaling, en …”

10.9 On 27 July 2015 both the loan and lease agreements were entered into. Although the deceased and the first respondent signed the loan agreement in their capacities as moneylenders, the lease agreement was entered into between the Trust and the deceased, with the exclusion of the first respondent, in respect of the remainder of the Farm Diepfontein 346, district Fauresmith, Free State Province. This is the property sold by the deceased and first respondent to the Trust. The aforesaid second mortgage bond was registered over this property.

10.10 The initial rental amounted to R122.00 per hectare per annum and the parties agreed that the lease would commence on 1 September 2015 with a duration of three years, terminating on 31 August 2018, unless “die eienaar sy volle lening by die huurder vereffen voor die termyn eindig, in welke geval die huurkontrak sal verval op datum van betaling”.[7] The effect hereof is that should the Trust pay the aforesaid loan within the period of three years, the lease agreement would terminate on date of settlement of the loan.

10.11 Attached to the loan agreement is the schedule of payments referred to earlier, indicating the capital of the loan, the rental in respect of the three years in the amount of R90 280.00 for each year and the interest payable in respect of the three years in the amounts of R155 972.00, R171 569.20 and R179 698.12. The total amount due and payable was calculated to be R1 976 679.32.[8]

10.12 On 26 May 2016, less than a year after conclusion of the loan agreement, the bonds of marriage between the first respondent and the deceased were dissolved. A Deed of Settlement was entered into between these parties, obviously with the exclusion of the Trust or any of the trustees thereof.[9]

10.13 Although strictly speaking irrelevant, it is apposite to mention what the first respondent and the deceased agreed in paragraph 2.9 of the Deed of Settlement:

“Die partye bevestig dat Sterkfontein Trust (Mnr Poenie Badenhorst) aan die partye ‘n bedrag van R1 650 000.00 verskuldig is, synde die balans koopsom van die plaas Diepfontein en sal elke party geregtig wees op 50% van sodanige rente betaalbaar deur Sterkfontein Trust (Mnr Poenie Badenhorst), asook 50% van die kapitale bedrag verskuldig aan die paryte sodra dit opeisbaar en betaalbaar word. Voorts sal die Verweerder geregtig wees om voort te gaan met die huurkontrak wat huidiglik geld tussen die partye en Sterkfontein Trust (Mnr Poenie Badenhorst) oor die weiding op die plaas Diepfontein en indien die huurgeld vir die weiding die rente inkomste verskuldig deur Sterkfontein Trust (Mnr Poenie Badenhorst) oorskry, dan in daardie geval sal die Verweerder teenoor die Eiseres aanspreeklik wees vir betaling van 50% van sodanige rentes betaalbaar deur Sterkfontein Trust (Mnr Poenie Badenhorst), op datum wat Sterkfontein Trust (Mnr Poenie Badenhorst) die kapitale bedrag aan die partye betaal het.”

The first respondent relies in her answering affidavit on this sub-paragraph in an effort to persuade the court that the full amount of the loan had not been settled. I quote:[10]

“The nett effect of Paragraph 2.9 entails that I became entitled to the half of each and every yearly payment, the set-off payable by my late husband excluded.”

10.14 The deceased passed away on 19 July 2016[11] whereupon the second respondent, Mr Terblanche, was appointed as executor in his estate.

10.15 There is no indication in the record that the lease agreement was cancelled upon the death of the deceased or at any time thereafter. All indications are to the contrary.

10.16 Mr Terblanche in his capacity as executor of the deceased estate confirmed that the full outstanding balance in terms of the loan agreement was settled on 9 January 2019.[12]

10.17 On 24 January 2020 first respondent signed a consent to cancellation of the mortgage bond at the offices of her erstwhile attorney, Mr Spangenberg.[13] She left for overseas hereafter and whilst away, Mr Spangenberg and the second respondent eventually agreed that a further amount of R44 709.06 was still outstanding and payable to the first respondent. This amount was paid to Mr Spangenberg.[14] Hereafter the signed consent to cancellation was forwarded to Mr Terblanche. At that stage it would be possible to lodge the documents with the Deeds Registry for cancellation of the mortgage bond.[15]

10.18 The first respondent denies that her attorney was entitled to bind her and/or make concessions on her behalf and as a result she denies that she has been paid in full. It is important to understand what the two attorneys agreed upon and how they came to the outstanding balance. More about this when I evaluate the evidence.

10.19 It was discovered later that Mortgage Bond B 6265/2016 went astray and could not be traced. Consequently, the mortgage bond was never cancelled. The instructed conveyancers could not proceed with cancellation thereof in the Deeds Registry due to the provisions of regulation 68 and in particular regulation 68(11). An application, further consent and affidavits from the mortgagees are required. Mr Terblanche signed an application and consent in terms of regulation 68(11) in his capacity as executor which is attached to the papers, but the first respondent refuses to sign any further documents.[16]

VI

EVALUATION OF THE EVIDENCE AND SUBMISSIONS BY COUNSEL

[11] Although much has been said in the application papers, the dispute is relatively easy to adjudicate. I presented the factual position in much detail supra and do not intend to repeat any of the evidence unless strictly necessary. The question to be answered is whether the Trust paid in full what it owed in terms of the loan agreement, secured by Mortgage Bond B 6265/2015. If so, it is entitled to cancellation of the mortgage bond. Mr Grewar submitted that the application should be dismissed with costs as a material factual dispute exists which cannot be properly adjudicated on the papers. He also submitted that if the application is granted, the first respondent would be prejudiced as she would have no means to protect her rights in terms of the mortgage bond.

[12] Much has been made by first respondent of the requirements of interdicts and whether these have been met. Three pages of the first respondent’s heads of argument consisting of ten pages were devoted to these requirements. Let the record be set straight: no mortgagee may refuse to sign a consent to cancellation of a mortgage bond if the mortgagor has fully settled his/her/its indebtedness to the mortgagee as moneylender. The mortgage bond in casu serves as security for the loan and settlement of the loan entitles the debtor to cancellation of the mortgage bond.

[13] Mr Els made a remark from the bar that after the death of the deceased a certain person started to use the grazing on the property and paid rentals to the deceased’s estate in respect thereof. If this is correct, it would mean that the executor sub-leased the grazing to a third party, but that the deceased estate still remained liable towards the applicants as lessors. This aspect was not properly ventilated, it cannot be accepted as common cause and should not be considered any further. Fact of the matter is that, even if Mr Els is correct, it remains common cause on the papers that the lease agreement was not cancelled, either upon the death of the deceased, or at any time thereafter during the existence of the loan agreement. Therefore, the deceased estate remained liable as lessee towards the lessors during the full duration of the lease agreement.

[14] The law is clear in respect of lease contracts entered into for fixed periods. The death of either the lessor or the lessee will not terminate the lease agreement, except if the lease agreement so provides. The law in respect of leases for indeterminable periods, which are normally terminable at the will of either party, is different.[17]

[15] Mr Grewar relied in his heads of argument on the marriage in community of property that existed between the deceased and the first respondent at the time that they sold their farm and agreed to the loan. If I understood him well, he tried to submit that in so far as the deceased entered into the lease agreement on his own, excluding first respondent, the payment method agreed upon in the loan agreement pertaining to set-off of the rentals cannot be binding on the first respondent. In order to bolster his argument, he submitted that a husband’s marital power over his wife had been abolished. I am at a loss as to what could be achieved by such argument, but will revert thereto in a moment. No doubt, the abolition from I November 1984[18] of the marital power that a husband used to have over his wife did away with the restrictions which that power placed on the capacity of a wife to contract and to litigate. Equal powers were granted to spouses married in community of property, subject to the provisions of Chapter III of the Matrimonial Property Act.[19]

[16] The deceased entered into the lease agreement on his own and to the exclusion of his wife, the first respondent. It might have been done without her written or even verbal consent. I do not have to assume that the first respondent consented thereto, even where all the undisputed evidence points in that direction. This is immaterial as the validity of the lease agreement is not in dispute in the present proceedings.

[17] It is accepted that the deceased was a farmer and that the lease agreement was entered into in the course of his farming operations. I have not been told by Mr Grewar that the deceased was not entitled to lease the grazing on the farm previously owned by him and the first respondent. In fact, the first respondent expressly agreed that the deceased could continue with the lease agreement in clause 2.9 of the Deed of Settlement quoted in full supra. It is also clear that the Deed of Sale and the lease and loan agreements were entered into either at the same time or within days from each other. The first respondent was acutely aware of the lease agreement and the manner in which set-off would take place. The wording of the loan agreement and second mortgage bond is clear and unambiguous.

[18] The first respondent is obviously not prepared to receive less from the Trust than 50% of the capital of the loan and 50% of the interest on the capital in monetary value. It is her case that there should be no set-off in respect of the rentals agreed upon in the lease agreement from the loan debt. This is contrary to clause 2.9 of the Deed of Settlement in the divorce matter. The parties even stipulated that in the event that the rental exceeds the interest on the loan in future, the deceased would pay to the first respondent 50% of the interest payable.

[19] Mr Grewar submitted in his heads of argument that “after the date of the first respondent’s divorce she was entitled to the full 50% of the monetary payments due by the applicants”. He initially made the same submission during oral argument. He submitted that “the dynamics of the contracts changed with the divorce.”. Eventually he submitted that his client became entitled to these payments from the death of the deceased and conceded that the divorce and settlement between the first respondent and the deceased had no effect on the rights and obligations of the applicants, representing the Trust. He then submitted that the dynamics changed upon the death of the deceased. According to him his client became entitled to payment of the full 50% of the interest payable on the loan upon the deceased’s death. This argument does not hold any water. The Trust could not be placed in a worse position as a result of the deceased’s death. The lease agreement remained in force and consequently, also the payment structure in respect of the loan agreement agreed upon in July 2015. Again, whatever her viewpoint, the first respondent’s possible claim should be directed to the estate of the deceased and not to the Trust.

[20] Therefore, in so far as the first respondent believes that money is due to her, she must claim that from the estate of her late husband, the deceased. The Trust cannot be burdened and forced to pay more than agreed to. In any event, when the deceased entered into the lease agreement, he bound the joint estate and consequently, it was no surprise that the first respondent agreed to a set-off in the loan agreement.

[21] Mr Grewar conceded that the terms of the Deed of Settlement entered into between first respondent and her late husband, the deceased, could not in any manner affect the obligations of the Trust in terms of the loan agreement. Notwithstanding this concession he submitted that the principle of equality between spouses mentioned supra “entailed that the estate is halved (sic) in the event of the spouses getting divorced” and therefore “the first respondent had to be regarded as a separate entity (sic) eversince the passing of Mr Fraser.” If this argument is to hold water, the death of one of the parties to a contract may lead to the immediate and unintended increase in the contractual obligations of the other party to the contract, or put otherwise and in the present context, the deceased’s death (or the divorce for that matter) caused the Trust hardship in so far as it was bound to pay more than agreed upon. This cannot be the law and Mr Grewar failed to provide any authority for the submission.

[22] Nothing prohibits parties to a contract, and to be more precise, moneylenders as in casu, to agree with their borrowers that some or even all payments due in terms of the credit advanced shall be paid to a third party (or parties) selected and nominated by them. It happens all the time in commercial life. Payment to that third party (parties) will constitute compliance with the agreement.[20]

[23] There is no need to again quote the payment method agreed upon between the Trust and the moneylenders (the deceased and first respondent). The wording is clear and unambiguous. The parties to the loan agreement went further than required and even attached a schedule of payments to the agreement.[21] The three annual rental payments payable in August of 2016, 2017 and 2018 in the amount of R90 280.00 for each year have been deducted from the outstanding balance. Set-off or compensatio is a well-established method by which contractual or other debts may be extinguished. It comes into effect when two parties are reciprocally indebted to each other.[22] I accept that the first respondent was not a party to the lease agreement, but as mentioned supra, she not only recognised the lease agreement when the Deed of Settlement was entered into, but the deceased bound the joint estate for the reasons advanced herein.

[24] Much has been made by first respondent of Mr Terblanche’s handwritten notes during his negotiations with Mr Spangenberg.[23] It is quite apparent that the two attorneys dealt with more than just the loan agreement. The amount of R165 802.00 is manifestly the amount due and payable by the deceased to the first respondent in terms of clause 2.5.2 of the Deed of Settlement. It was agreed between the erstwhile spouses that this amount plus interest, which had nothing to do with Trust, would be payable by the deceased to first respondent when the Trust settles its indebtedness in respect of the loan agreement.

[25] First respondent’s calculations[24] do not make any sense. Again, it is reiterated that she could not ignore the two years’ rentals for 2017 and 2018 and insisted that the amount of R180 560.00 be added back. The same applies to the so-called pro rata rent for 11 months since divorce. She also incorrectly insists on 50% of the interest payable on the capital of the loan notwithstanding the unambiguous language of the loan agreement and mortgage bond.

[26] The first respondent stated that Mr Terblanche had no authority to make concessions about payment or final settlement of the loan. That may be so, but this court is entitled to adjudicate the matter on the evidence presented to it. I accept Mr Terblanche’s version as correct. His calculations are in line with the terms of the loan agreement and mortgage bond.[25] Mr Van der Berg, an attorney and independent trustee of the Trust, agrees with Mr Terblanche and justifiably so. Even Mr Spangenberg, an experienced attorney and the first respondent’s erstwhile attorney, was in agreement with the calculations undertaken by Mr Terblanche which also included monies due and payable in terms of the Deed of Settlement. Although the onus is on the Trust to prove payment, I am satisfied that it has proven that the loan granted to it by the deceased and the first respondent has been paid in full.

[27] First respondent stated that she instructed Mr Terblanche on several occasions and even Mr van der Berg on more than one occasion to effect payments in respect of the loan agreement directly to her.[26] This is disputed, but the dispute cannot have an effect on the calculation of monies due and payable in terms of the loan agreement and the eventual final settlement of the loan.

VII

CONCLUSION

[28] The Trust’s debt has been settled and there is no reason why the mortgage bond should not be cancelled. It was registered to secure a loan which has now been extinguished.

[29] The orders I intend to grant are in line with the amendment requested by Mr Els. I quoted the specific sub-regulations of regulation 68 supra in so far as I believe it to be applicable. In order to pronounce effectively on the issue, I deem it apposite to extent the relief sought as will be evident from the orders granted. There cannot be any prejudice to the first respondent. Mr Grewar already indicated that his client could not object to the amendment sought.

[30] Attorney and client costs are sought and I gave serious consideration thereto. Eventually I decided against that although this is a borderline case. The first respondent could just as well be held to be vexatious, or at least grossly reckless, in opposing the application. She never insisted before the institution of the present application that her written consent to cancellation should not be acted upon. Was it not for the fact that Mortgage Bond B6265/2015 could not be traced, this bond would have been cancelled long ago. It was only when she was called upon to sign an application and consent in terms of regulation 68(11) in light of the missing mortgage bond that she changed her stance and denied that the Trust was entitled to cancellation thereof.

VIII

THE ORDERS

[31] The following orders are granted:

1. The first respondent is ordered and directed to sign the consent to cancellation and all other documents required by the Registrar of Deeds in terms of regulation 68(11) of the Deeds Registries Act, 47 of 1937 for the cancellation of Mortgage Bond B6265/2015 within TWO (2) days from date of this order.

2. In the event of the first respondent failing to comply with paragraph 1 above, the Registrar of this Court is authorised to sign on behalf of the first respondent the consent to cancellation and all other documents required by the Registrar of Deeds in terms of regulation 68(11) of the Deeds Registries Act, 47 of 1937 for the cancellation of Mortgage Bond B6265/2015.

3. The first respondent is ordered to pay the costs of this application.

JP DAFFUE J

On behalf of the applicants:

Adv J Els

Instructed by:

Phatshoane Henney Inc

BLOEMFONTEIN

On behalf of the first respondent: Adv DM Grewar

Instructed by: HJ Booysen Attorneys Inc

[1] 47 of 1937

[2] See regulation 68(11) relied upon by the applicants which should be read with sub-regulations 1, 2 & 3 of regulation 68 issued in accordance with the provisions of the Deeds Act which I paraphrase to illustrate the point: “(1) If any deed conferring title to land or any interest therein or any real right, or any registered lease or sublease or registered cession thereof or any mortgage or notarial bond, is lost or destroyed and a copy is required for any purpose other than one of those mentioned in either of the last two preceding regulations, the

registered holder thereof or his duly authorised agent may make written application for such copy, which application shall be accompanied by an affidavit describing the deed and stating that it has not been pledged and it is not being detained by any one as security for debt or otherwise, but that it has been actually lost or destroyed and cannot be found though diligent search has been made therefor, and further setting forth where possible the circumstances under which it was lost or destroyed: Provided that where a Registrar is satisfied that any deed mentioned in this paragraph has been inadvertently lost, destroyed, defaced or damaged by him, it shall, notwithstanding the provisions of subregulation (2), be competent for him to issue a copy thereof free of charge and without the need to comply with subregulation (1E), upon submission of an application and affidavit by the relevant conveyancer or person contemplated in section 15A(2). (1E)(a) Before the issuing of a certified copy of any deed conferring title to land or any interest therein or any real right, or any registered lease or sub-lease or registered cession thereof or any mortgage or notarial bond under this regulation, the applicant shall publish, substantially in the prescribed form, a notification of intention to apply for such certified copy in an issue of a newspaper circulating in the area in which the land is situated and in the case of a notarial bond in an issue of one or more newspapers circulating in the area of every deeds registry in which such notarial bond is registered. (11) If the registered holder of a mortgage or notarial bond (which has been lost, destroyed or is unserviceable) or his or her duly

authorised agent desires to procure cancellation of the bond, and has made written application duly witnessed to the Registrar to cancel such bond, and has complied, mutatis mutandis, with the provisions of subregulations (1), (2) and (3) of this regulation, the Registrar shall, if he or she is satisfied that no good reason to the contrary exists, cancel the registration duplicate of such bond, and such cancellation shall be deemed to be a cancellation of such bond notwithstanding that the original of such bond was not submitted for cancellation.” (emphasis added)

[2] See regulation 68(11) relied upon by the applicants which should be read with sub-regulations 1, 2 & 3 of regulation 68 issued in accordance with the provisions of the Deeds Act which I paraphrase to illustrate the point: “(1) If any deed conferring title to land or any interest therein or any real right, or any registered lease or sublease or registered cession thereof or any mortgage or notarial bond, is lost or destroyed and a copy is required for any purpose other than one of those mentioned in either of the last two preceding regulations, the

registered holder thereof or his duly authorised agent may make written application for such copy, which application shall be accompanied by an affidavit describing the deed and stating that it has not been pledged and it is not being detained by any one as security for debt or otherwise, but that it has been actually lost or destroyed and cannot be found though diligent search has been made therefor, and further setting forth where possible the circumstances under which it was lost or destroyed: Provided that where a Registrar is satisfied that any deed mentioned in this paragraph has been inadvertently lost, destroyed, defaced or damaged by him, it shall, notwithstanding the provisions of subregulation (2), be competent for him to issue a copy thereof free of charge and without the need to comply with subregulation (1E), upon submission of an application and affidavit by the relevant conveyancer or person contemplated in section 15A(2).

(1E)(a) Before the issuing of a certified copy of any deed conferring title to land or any interest therein or any real right, or any registered lease or sub-lease or registered cession thereof or any mortgage or notarial bond under this regulation, the applicant shall publish, substantially in the prescribed form, a notification of intention to apply for such certified copy in an issue of a newspaper circulating in the area in which the land is situated and in the case of a notarial bond in an issue of one or more newspapers circulating in the area of every deeds registry in which such notarial bond is registered.

(11) If the registered holder of a mortgage or notarial bond (which has been lost, destroyed or is unserviceable) or his or her duly

authorised agent desires to procure cancellation of the bond, and has made written application duly witnessed to the Registrar to cancel such bond, and has complied, mutatis mutandis, with the provisions of subregulations (1), (2) and (3) of this regulation, the Registrar shall, if he or she is satisfied that no good reason to the contrary exists, cancel the registration duplicate of such bond, and such cancellation shall be deemed to be a cancellation of such bond notwithstanding that the original of such bond was not submitted for cancellation.” (emphasis added)

[3] The first respondent’s calculations are set out in para 3.25 of the answering affidavit: record pp 129 & 130 and para 4.12.5 on p 134 and see also para 3.15 on p 127

[4] See annexure “FA7” record p 62 - 64

[5] Annexure “FA5” to the founding affidavit: record p 44 - 53

[6] See annexure “FA8” to the founding affidavit: record p 68 - 76

[7] Annexure “FA6” p 55

[8] See record p 54

[9] Annexures “HF1” & “HF2” to the answering affidavit, record pp 148 - 162

[10] Record p 126

[11] Answering affidavit para 3.18, record p 127

[12] See annexure “FA9” to the founding affidavit p 77 read with para 9.2 of the founding affidavit p 15 as well as the confirmatory affidavit of Terblanche annexure “FA19” pp 102 - 104

[13] Annexure “FA13” to the answering affidavit pp 83 & 84

[14] See annexure “FA11” and “FA12” to the answering affidavit p 81 & 82

[15] Annexures “FA11”, “FA12” and “FA13” to the founding affidavit, pp 81 - 84

[16] See annexure “FA15” to the answering affidavit p 96 & 97 read with para 11 of the founding affidavit, record pp 17 - 18

[17] Bradfield, et al (General Editor F du Bois), Wille’s Principles of SA Law, 9th ed at p 919; Ebrahim v Pretoria Stadsraad 1980 (4) SA 10 (T) at p 14F – G and p 15B - D

[18] Section 13 of the Matrimonial Property Act, 88 of 1984

[19] Section 14 with particular reference to s 15 which deals in ss 15(2) & (3) with the consent required from the other spouse to contract in certain circumstances

[20] Christie & Bradfield, Christie’s The Law of Contract in South Africa, 6th ed at p 445

[21] Clause 6.3 of the loan agreement, read with the schedule: record pp 48 and 54

[22] Christie & Bradfield, Christie’s The Law of Contract in South Africa, 6th ed at p 494

[23] Record p 80 read with para 29 of the replying affidavit on pp 190 – 192 and confirmatory affidavit of Mr Terblanche

[24] See answering affidavit para 3.15 on p 127 and para 4.12 and 4.12.5 in particular on p134 and the reply thereto in paras 21 & 38 on pp 184/5 & 196/7

[25] Annexure “FA9” p 77

[26] Paras 3.17 – 3.20 of the answering affidavit at pp 127 - 128 and the response in reply at paras 3.23 – 3.26, pp 185 – 188 and annexures “RA1” and “RA2”