PBD Boeredienste (Pty) Ltd v Claassens N.O. and Others (2381/2014) [2015] ZAFSHC 218 (5 November 2015)
- Citation
- [2015] ZAFSHC 218
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- A. Kruger
- Case number
- 2381/2014
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- A. Kruger
- Case number
- 2381/2014
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that there were no reasonable prospects that another court would reach a different conclusion regarding the applicant's claim for cancellation and transfer of the properties. The applicant had alternative remedies available, such as obtaining a nulla bona and applying for sequestration of the trust. The alleged fraudulent nature of the transfers was not sufficiently established, as delays were attributed to legal complexities rather than misconduct. However, the court held that there were reasonable prospects that another court might find the costs order against the first respondent unjustified, as the judgment did not address the costs of other respondents, including the bondholder. Accordingly, leave to appeal was granted to the first respondent on the costs order, but the applicant's cross-appeal was refused.
Court disposition
Leave to appeal granted to the first respondent on the costs order; application for leave to cross-appeal by the applicant refused.
Orders
- The first respondent is granted leave to appeal to the Full Bench of this division against the costs order made against him by Murray AJ. Costs of the first respondent’s application for leave to appeal are costs in the appeal.
- The application for leave to appeal in the cross-appeal is refused. The applicant is to pay the costs of the cross-appeal.
02
Material facts
Parties
PBD Boeredienste (Pty) Ltd
Applicant Counsel: Adv P UysCarel Johannes Claassens N.O.
Respondent Counsel: Mr JHD BloemGustav Lourens Claassens N.O.
RespondentRiaan Ahrens N.O.
RespondentHenry Peter Johnson N.O.
RespondentRetmil Financial Services (Edms) Bpk
RespondentRegistrar of Deeds, Bloemfontein
RespondentMaster of the Free State High Court, Bloemfontein
RespondentAmounts and remedies
- Debt Owed by First Respondent to Applicant: ZAR 220,000
- Bond Registered Over Property in Favour of Fifth Respondent: ZAR 890,000
03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Main Application and Costs Order
04
Questions and positions
Legal issues
- 01
Whether the first respondent should be granted leave to appeal against the costs order made by Murray AJ.
- 02
Whether the applicant should be granted condonation and leave to cross-appeal against the dismissal of its application for cancellation of deeds and transfer of sectional title units.
- 03
Whether there are reasonable prospects that another court would reach a different conclusion on the applicant's claim for transfer and execution of the properties.
Party arguments
- Applicant
- The applicant sought cancellation of two deeds of transfer and registration of certain sectional title units into the name of the AMCC Trust. It argued that the transfers were fraudulent and that the first respondent's conduct justified a costs order against him. The applicant also sought to declare the properties specially executable for a debt of approximately R220,000 owed by the first respondent. The applicant applied for condonation for late filing of its cross-appeal and did not oppose the first respondent's application for leave to appeal the costs order, asserting that it was in the interests of justice to allow the cross-appeal to proceed.
- Respondent
- The first respondent, as trustee of the AMCC Trust, opposed the cancellation and transfer application, arguing that delays were due to legal complexities of the will, not fraud. He sought leave to appeal the costs order made against him personally, contending that the order was unjustified and that the conduct in litigation did not warrant personal costs. The first respondent did not oppose the applicant's condonation application.
05
Court’s reasoning
Legal principles
- 01
Section 17(1) of the Superior Courts Act, 10 of 2013
Leave to appeal should be granted where there are reasonable prospects that another court may come to a different conclusion.
- 02
Murray AJ judgment (referenced in this case)
Costs orders may be made against a party in their personal capacity where their conduct in litigation is censured.
06
Ratio, limits and disposition
Ratio decidendi
The court found that there were no reasonable prospects that another court would reach a different conclusion regarding the applicant's claim for cancellation and transfer of the properties. The applicant had alternative remedies available, such as obtaining a nulla bona and applying for sequestration of the trust. The alleged fraudulent nature of the transfers was not sufficiently established, as delays were attributed to legal complexities rather than misconduct. However, the court held that there were reasonable prospects that another court might find the costs order against the first respondent unjustified, as the judgment did not address the costs of other respondents, including the bondholder. Accordingly, leave to appeal was granted to the first respondent on the costs order, but the applicant's cross-appeal was refused.
Obiter and limits
- Condonation for late filing of the cross-appeal was not opposed and was granted.
- The applicant is not without remedy to recover its debt from the AMCC Trust through other legal processes.
- The conduct of the first respondent was censured in the original judgment, but the delays were due to legal complexities, not fraud.
Court disposition
Leave to appeal granted to the first respondent on the costs order; application for leave to cross-appeal by the applicant refused.
- The first respondent is granted leave to appeal to the Full Bench of this division against the costs order made against him by Murray AJ. Costs of the first respondent’s application for leave to appeal are costs in the appeal.
- The application for leave to appeal in the cross-appeal is refused. The applicant is to pay the costs of the cross-appeal.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Case No. : 2381/2014
In the matter between:-
PBD BOEREDIENSTE (PTY)
LTD
Applicant
and
CAREL
JOHANNES CLAASSENS N.O.
1st Respondent
GUSTAV
LOURENS CLAASSENS N.O.
2nd Respondent
RIAAN
AHRENS N.O.
3rd Respondent
HENRY
PETER JOHNSON N.O.
4th Respondent
RETMIL FINANCIAL SERVICES (EDMS) BPK
5th Respondent
THE REGISTRAR OF DEEDS, BLOEMFONTEIN 6th Respondent
THE MASTER OF THE FREE STATE HIGH COURT,
BLOEMFONTEIN
7th Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
JUDGMENT BY: KRUGER,
J
DELIVERED ON: 5 NOVEMBER 2015
[1] These are applications for leave to appeal against the judgment of Murray AJ. The parties are referred to as in the main
application. This application is dealt with on the written submissions made by counsel, Mr JHD Bloem on behalf of the first
respondent and Mr P Uys on behalf of the applicant.
[2] The applicant applied for an order cancelling two deeds of transfer and for an order registering certain sectional title units into the name of the Anna Maria Magdalena Claassens Trust (the AMCC Trust).
[3] The first respondent is the only trustee of the AMCC Trust. The second respondent is the son of the first respondent. The second, third and fourth respondents are trustees of The Lowerkruin Trust, in whose name the properties are at present
registered. The fifth respondent is Retmill Financial Services (Pty) Ltd, a bondholder over the properties. The sixth
respondent is the Registrar of Deeds, and the seventh respondent is the Master of the Free State High Court.
[4] On 25 June 2015 Murray AJ dismissed the application but ordered the first respondent to pay the costs of the application in his personal capacity.
[5] The first respondent filed an application for leave to appeal against the costs order against him. Thereafter the applicant filed a notice of an application for leave to cross-appeal against the dismissal of its application, together with an application for condonation for the late filing thereof. Condonation is not opposed and should be granted. The applicant does not oppose the first respondent’s application for leave to appeal against the costs order on the basis that it is in the interests of justice to allow the applicant to proceed with the cross-appeal.
[6] One of the reasons why the applicant brought the present application is to obtain an order for the transfer of the properties into the name of the AMCC Trust and to declare the properties specially executable for the debt of about R220 000 owed by the first respondent to the applicant as appears from the founding affidavit. A bond of R890 000 was registered over one of the properties in favour of the fifth respondent in 2013. If the property is transferred to the AMCC Trust the third respondent, against whom no allegations of fraud are made, will lose its security. As Mr Reinders pointed out in his heads of argument before Murray AJ, the applicant is not without remedy to get payment from the AMCC Trust. Firstly it can obtain a nulla bona. Then it can apply for sequestration of the trust, after which a liquidator can investigate the circumstances of the transfer of the properties and take appropriate steps. In my view there are no reasonable prospects that another court will come to a different conclusion on the applicant’s claim.
[7] The conduct of the first respondent is important to adjudicate the applicant’s claim. The costs order was made because Murray AJ censured the conduct of the first respondent in the litigation. The applicant contends that the fraudulent nature of the transfers are apparent from delay caused by the first respondent. However, from the answering affidavit and annexures it is apparent that delays were caused by the legal complexities of the will.
[8] It does not appear from the judgment that Murray AJ considered the costs of the other respondents, including the fifth respondent. There are reasonable prospects that another court may find that the costs order was not justified.
ORDER
1. The first respondent is granted leave to appeal to the Full Bench of this division against the costs order made against him by Murray AJ. Costs of the first respondent’s application for leave to appeal are costs in the appeal.
2. The application for leave to appeal in the cross-appeal is refused. The applicant (PBD Boeredienste) is to pay the costs of the cross-appeal.
_____
A. KRUGER, J
On behalf of First Respondent: Mr JHD Bloem
Instructed by:
Spangenberg Zietsman & Bloem
BLOEMFONTEIN
On behalf of Applicant:
Adv P Uys
Symington & De Kok
wm/
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