Brad v Registrar of Deeds Pretoria and Others (72706/2012) [2013] ZAGPPHC 552 (23 November 2013)

REPUBLIC OF SOUTH

AFRICA

NORTH GAUTENG HIGH COURT,

PRETORIA

Case no: 72706/2012

DATE: 23 NOVEMBER 2013

In the matter between:

KIBEL: BRAD....................................................................................................................APPLICANT

AND

THE REGISTRAR OF DEEDS PRETORIA.......................................................1ST

RESPONDENT

THE MASTER OF THE HIGH COURT PRETORIA......................................2ND

RESPONDENT

THE SHERIFF OF THE HIGH COURT SANDTON........................................3RD

RESPONDENT

ABSA BANK...........................................................................................................4TH

RESPONDENT

ORDER AND REASONS

MANAMELA AJ

[1] This application came before me for the first time on the 20th November 2013 in the unopposed motion court and was stood down for reasons which I do not consider necessary to state for the record. However, I consider it important to mention here that, the application had previously been adjudicated upon by my brothers, Muller AJ and Fourie J, when the court directed that, on both occasions that certain steps be taken by the applicant. The applicant has duly taken those steps, but I am of the view that, further and additional steps need to be taken by the applicant, before a final and determinative order can be made by this court.

[2] Therefore, I took the liberty of prefacing the order I will be making in this matter, with some remarks which should not be considered as binding on the court whenever this matter is to be adjudicating upon again. In other words, only the order made today is legally binding and the rest constitutes my non-binding remarks. I have taken this rather unusual step due to the history of the matter and the fact that cited parties herein have so far indicated no opposition to the relief sought by the applicant, but the decisions of other courts in comparable matters [Simpson v Klein NO 1987 (1) SA 405 (W) and Syfrets Bank Ltd v Sheriff of the Supreme Court, Durban Central 1997 (1) SA 764 (D)] suggest that, perhaps another party should have been cited or joined in these proceedings. This is further from other attendances I have indicated as necessary in this matter.

[3] On the 19th June 2012, the Sandton sheriff of this court, being the third respondent (the sheriff) held a sale in execution in respect of an immovable property known as Erf 1253 Beverley Extension 65 Township, Registration Division JR,

Province of Gauteng (the property) registered in the name of a certain Teboho Vincent Williams (Williams).

[4] ABSA Bank, cited as the fourth respondent herein (ABSA), holds a mortgage bond over the property, ostensibly for monies lent and advanced. From the papers before the court, it appears that the sale in execution was in satisfaction of the judgment debt in favour of ABSA granted against Williams by the South Gauteng High Court, Johannesburg under a 2011 case number.

[5] The applicant submits that, he was the successful bidder at the sale in execution by the sheriff in respect of the property and signed the conditions of sale, paid the required deposit and complied with the rest of the conditions of sale. The document filed with this court as conditions of sale [annexure “BK3”] does not reflect the sheriff’s or applicant’s signature, but is only initialed on the nine pages before this court. I could not find the applicant’s name or other details on this document. Further, no proof of payment to the sheriff or compliance with other conditions of sale is included in the papers.

[6] The applicant later sold on the property to one Agnes Peter (Peter). Peter paid the required deposit and provided guarantees for the purchase price of the property.

[7] The necessary deeds were lodged around the 12th November 2012 with the Registrar of Deeds Pretoria (the first respondent) for the transfer of title from the applicant to Peter [annexure BK13]. I could glean on the papers that there was a

simultaneous lodgment of deeds for the transfer of title in respect of the property from the sheriff to the applicant and from the applicant to Peter, but only proof of the latter is included.

[8] The applicant submits that, the transfer was registered on the 23rd November 2013, guarantees were paid out and all interested parties informed of the transfers. However, there is no proof of registration by the first respondent is this regard, except for what appears to be an extract or printout of data called Search Works Report and correspondences from attorneys.

[9] It may be apposite to mention that Williams published a notice of surrender of his estate in the government gazette of the 22nd June 2012. It appears that, Williams’ estate was placed under sequestration by an order of this court following a notice of surrender. No copy of the court order is included in the papers, save for some printout stated as being from the website of the Master of the High Court, the second respondent herein (the Master).

[10] The applicant lodged the current application seeking relief to the effect that, the first respondent be ordered to register transfer of title from the sheriff to him, and from him to Peter. Concomitant to that, he prays that, the mortgage bond in favour of ABSA on the property be cancelled and a new mortgage bond be registered over the property in favour of Standard Bank. As I have already stated above, the application is not opposed, but has made some few appearances before this court without a final order.

[11] On the 06th February 2013 this court postponed the application sine die and ordered, among others, that the first respondent report to the court whether transfer was registered in the name of Peter and on what basis such registration was reversed on the 26th November 2012. The first respondent complied a report dated 14th March 2013 and stated [briefly] that, the first respondent’s records reflect Williams as the owner; ABSA as holding a mortgage bond; an attachment noted in ABSA’s favour and an interdict in respect of Williams’ sequestration. Further and of material importance to the order sought in terms of this application, it was reported that, the deeds office tracking system [annexure BK6] is a management tool and does not constitute proof of registration. I agree, without necessarily finding so, that indeed “BK6” does not constitute proof of registration. The first respondent further reported that, according to its tracking programme the impugned deeds were submitted and rejected and in the absence of copies of the deeds no meaningful comment could be furnished to the court.

[12] The applicant appears to have included the first respondent’s report as part of a supplementary affidavit and when the matter came before this court again on the 11th July 2013, it was again postponed sine die and the court ordered that, the supplementary affidavit be served on the first respondent and the latter file a follow- up report, responding to the allegations in the supplementary report by the applicant.

[13] The first respondent indeed responded by its own supplementary report. It was pointed out in this report that, due to the sequestration notice, the property should have been dealt with by the trustee.

[14] It appears that the main hurdle [if I may be pardoned for that choice of word] to the transfer of title in respect of the property is the sequestration of Williams which preceded the lodgment of the transfer documents. This situation seems to have been contemplated by the legislature through section 5(1) of the Insolvency Act 24 of 1936.

[15] In fact, the applicant relies on the aforesaid statutory provision and submits that, he wasn’t aware of the surrender of the estate of Williams at the time of purchasing the property. With respect, the latter submission is misplaced and should have been made by the sheriff and not the applicant. The relevant knowledge or actually the absence thereof, is that of “the person charged with the execution of the writ ...” The papers are lacking in this respect.

[16] The aforesaid provision refers to selling [the words “to sell” are used] and therefore I think it is necessary to determine the meaning and import of this word or words. Unfortunately, the Insolvency Act 24 of 1936 (the Insolvency Act) does not define the word “sell”. It is also not certain whether the word carries the meaning as in the contract of sale, but without producing an academic thesis on this, I conclude that it would have the same meaning as in a contract of sale. I find the following definition from the seminal book Wille’s Principles of South African Law, Du Bois, F.(editor) (9 ed), Juta,

Cape Town, 2007 at page 888) to be useful:

“A contract of sale is concluded as soon as the parties have agreed on the following three essential points, (a) that one person is to sell and the other to buy, (b) a defined and ascertained or ascertainable thing, (c) at a fixed or fixable price in money”.

[17] My understanding of the aforesaid is that, the moment when the sheriff and the applicant signified their intentions to sell (animus vivendi) and buy (animus emendi) respectively, the property and for the price (being the highest bid) a contract of sale was concluded. The applicant submit that this was on the 19th June 2012, but the conditions of sale [“BK3”] does not reflect the date or the signature by the persons who initialed the pages, including the applicant. This is necessary for manifestation of the necessary animus.

[18] The date on which the conditions of sale document was signed is vital to prove that a sale was concluded before the publication of the notice of surrender.

[19] The aforesaid would obviously not take away the concerns of the first respondent as in terms of the deeds registry, Williams would still be reflected as the registered owner and as being under sequestration. Further, the property may be regarded as having vested in the Master until the appointment of a trustee following the sequestration of Williams’ estate. The vesting in the Master is transitional and pending the appointment of a trustee [section 20 of the Insolvency Act], Therefore, the applicant may have to determine directly from the Master whether a trustee has been appointed and if not, request for one to be appointed urgently.

[20] An appointed trustee may be able to formally react to the possibility of the property having vested in the insolvent estate of Williams and the applicant would obviously have an opportunity to respond to such views, to the extent deemed necessary. The trustee is a critical role player in this matter and may have something critical to add to these proceedings which may significantly influence the outcome. It

may well be that due to the participation of ABSA as a holder of security rights over the property, the trustee is swayed by what ABSA and other creditors direct, but it is not my place to express views on that.

[21] In therefore make the following order:

(a) that, the matter be and is hereby postponed sine die.

(b) That, the application be served on a trustee appointed in respect of the second respondent and if no such trustee is appointed that, the second respondent be and is hereby requested to appoint a trustee in respect of the insolvent estate of Teboho Vincent Williams (Identity Number: 530724 56661 08 1) and thereafter the application be served on the appointed trustee.

( C ) That, the applicant is permitted to approach this court on the same papers or with the necessary supplementary affidavits.

K.LA.M lyiANAMELA

(ACTING JUDGE OF THE

HIGH COURT)