Henque 1237 CC v Du Plessis NO and Others (2119/2020) [2020] ZAFSHC 205 (7 September 2020)

Henque 1237 CC v Du Plessis NO and Others (2119/2020) [2020] ZAFSHC 205 (7 September 2020)

The Free State High Court has jurisdiction to grant orders affecting immovable property situated in another province, provided the requirements of section 97 of the Deeds Registries Act are met and proper notice is given to the relevant Registrar of Deeds. The court distinguished the Eilon case, noting that it concerned property outside South Africa and did not apply to the present facts. The resolution authorising the trustee to oppose the application was invalid, as there was no evidence of consultation with the third trustee, nor was the resolution signed by all trustees or properly dated. The principles of trust law require either joint action or, where majority decisions are...

Citation
[2020] ZAFSHC 205
Parties
Applicant: Henque 1273 CC; Respondent: Willem Carel Ernst Du Plessis N.O.; Respondent: Rinda–Marianne Du Plessis; Respondent: Guillaume Johannes Oberholster N.O.; Respondent: Beukes & Beukes; Respondent: JAC N Coetzer Incorporated; Respondent: Fancor Boerdery (Pty) Ltd; Respondent: Registrar of Deeds, Pretoria
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
7 September 2020
Case Number
2119/2020
Procedural Posture
Urgent Application / Show Cause Hearing Following Interim Interdict; Determination of Points in Limine
Outcome
Interim interdict confirmed; costs reserved for trial court.
Judges
Naidoo
Legal Topics
Interim Interdict, Jurisdiction of High Court, Trustee Authority, Agreement of Sale, Repudiation and Cancellation
Civil Procedure Land and Property Interim Interdict Jurisdiction of High Court Trustee Authority Agreement of Sale Repudiation and Cancellation

Case Brief

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Parties

Henque 1273 CC

Applicant

Willem Carel Ernst Du Plessis N.O.

Respondent

Rinda–Marianne Du Plessis

Respondent

Guillaume Johannes Oberholster N.O.

Respondent

Beukes & Beukes

Respondent

JAC N Coetzer Incorporated

Respondent

Fancor Boerdery (Pty) Ltd

Respondent

Registrar of Deeds, Pretoria

Respondent

Procedural Posture

Urgent Application / Show Cause Hearing Following Interim Interdict; Determination of Points in Limine

Legal Issues

  1. 1 Whether the Free State High Court has jurisdiction to grant orders concerning immovable property situated in another province.
  2. 2 Whether the trustee opposing the application was validly authorised to act on behalf of the trust.
  3. 3 Whether the interim interdict should be confirmed pending the outcome of the action regarding the agreement of sale.

Ratio Decidendi

The Free State High Court has jurisdiction to grant orders affecting immovable property situated in another province, provided the requirements of section 97 of the Deeds Registries Act are met and proper notice is given to the relevant Registrar of Deeds. The court distinguished the Eilon case, noting that it concerned property outside South Africa and did not apply to the present facts. The resolution authorising the trustee to oppose the application was invalid, as there was no evidence of consultation with the third trustee, nor was the resolution signed by all trustees or properly dated. The principles of trust law require either joint action or, where majority decisions are...

Court Disposition

Interim interdict confirmed; costs reserved for trial court.

Orders

  • The first, second, third and fifth respondents are interdicted from requesting the Registrar of Deeds, Pretoria to transfer Portion 16 of the farm Rustkraal 129 division H.P. Northwest Province into the name of the sixth respondent pending finalisation of the action.
  • The applicant was ordered to institute, within 14 days from 29 June 2020, the action for an order declaring the agreement of sale dated 24 February 2020 to be of full force and effect; such action was instituted on 13 July 2020 under case number 2491/2020.