De Beer N.O.en Ander v Mainserve Africa (EDMS) BPK en Ander (236/2013) [2016] ZAFSHC 22 (11 February 2016)

De Beer N.O.en Ander v Mainserve Africa (EDMS) BPK en Ander (236/2013) [2016] ZAFSHC 22 (11 February 2016)

The court held that the applicants' claim for transfer of shares based on the rei vindicatio had not prescribed, as such a claim is not a 'debt' under the Prescription Act and is not subject to three-year extinctive prescription. The Supreme Court of Appeal in Absa Bank Ltd v Keet clarified that the vindicatory action is not extinguished by prescription after three years. The respondents' reliance on estoppel was rejected, as estoppel cannot validate a void contract. The applicants were not required to tender restitution of the R600,000 deposit as a prerequisite for their claim; however, the court exercised its discretion to order payment of the deposit upon transfer of the shares to...

Citation
[2016] ZAFSHC 22
Parties
Applicant: Frank James De Beer N.O.; Applicant: Mariette De Beer N.O.; Applicant: Abraham Jacobus Du Plessis N.O.; Respondent: Mainserve Africa (EDMS) BPK; Respondent: Khosimang Edgar Eric Ramongalo; Respondent: Hendre van der Merwe; Respondent: Zamile Jacob Gcwili; Respondent: Bernard van der Walt N.O.; Respondent: Jacobus Elisa Kritzinger N.O.; Respondent: Ronel van der Walt N.O.; Respondent: Jacobus Greeff Fourie; Respondent: Companies and Intellectual Property Commission; Respondent: Registrar of Deeds: Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
11 February 2016
Case Number
236/2013
Procedural Posture
Civil Application / Final Judgment After Oral Evidence
Outcome
Application granted in favour of the applicants. Respondents ordered to transfer shares and pay costs.
Judges
J P Daffue
Legal Topics
Rei Vindicatio, Company Shares Transfer, Prescription Act, Estoppel, Trust Law, Restitution
Commercial and Corporate Civil Procedure Rei Vindicatio Company Shares Transfer Prescription Act Estoppel Trust Law Restitution

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Parties

Frank James De Beer N.O.

Applicant

Mariette De Beer N.O.

Applicant

Abraham Jacobus Du Plessis N.O.

Applicant

Mainserve Africa (EDMS) BPK

Respondent

Khosimang Edgar Eric Ramongalo

Respondent

Hendre van der Merwe

Respondent

Zamile Jacob Gcwili

Respondent

Bernard van der Walt N.O.

Respondent

Jacobus Elisa Kritzinger N.O.

Respondent

Ronel van der Walt N.O.

Respondent

Jacobus Greeff Fourie

Respondent

Companies and Intellectual Property Commission

Respondent

Registrar of Deeds: Bloemfontein

Respondent

Procedural Posture

Civil Application / Final Judgment After Oral Evidence

Legal Issues

  1. 1 Whether the applicants' claim for transfer of shares based on the rei vindicatio has prescribed.
  2. 2 Whether the applicants have established a complete cause of action despite not tendering restitution of the R600,000 deposit received under a void contract.
  3. 3 Whether the respondents can rely on estoppel based on alleged representation.

Ratio Decidendi

The court held that the applicants' claim for transfer of shares based on the rei vindicatio had not prescribed, as such a claim is not a 'debt' under the Prescription Act and is not subject to three-year extinctive prescription. The Supreme Court of Appeal in Absa Bank Ltd v Keet clarified that the vindicatory action is not extinguished by prescription after three years. The respondents' reliance on estoppel was rejected, as estoppel cannot validate a void contract. The applicants were not required to tender restitution of the R600,000 deposit as a prerequisite for their claim; however, the court exercised its discretion to order payment of the deposit upon transfer of the shares to...

Court Disposition

Application granted in favour of the applicants. Respondents ordered to transfer shares and pay costs.

Orders

  • It is declared that the written share sale agreement dated 10 July 2008 between the Dilligaf Trust and the first to seventh respondents is void.
  • The transfer of the specified issued shares in the first respondent to the listed respondents is declared void.