Glover v Bothma

• Jurisdiction: South Africa
• Judge: Roper J
• Judgment Date: 24 November 1947
• Citation: 1948 (1) SA 611 (W)
• Court: Witwatersrand Local Division

Roper, J.:

On the 11th August, 1945, the respondent executed in favour of his son, C. H. Bothma, a power of attorney in the following terms:

"'Special Power of Attorney'

I, the undersigned,

JOHANNES FREDERICK BOTHMA

(born on the 22nd day of April, 1872)

of 'Wilgespruit', Roodepoort District, Transvaal Province, do hereby nominate, constitute and appoint my son -

CORNELIUS HENDRIK BOTHMA

with power of substitution, to be my lawful attorney and agent in my name, place and stead to lay out and establish agricultural holdings according to law under such name as he may determine on my land, viz:

(1)

Certain Remaining Extent of Portion 7 of the North-Western Portion of the farm 'Wilgespruit' No. 3, District of Roodepoort, Measuring as such 65.8316 morgen, as held by me under Deed of Transfer No. 260/1916, dated 19th January 1916;

(2)

Certain Remaining Extent of Portion 8 of the North-Western Portion of the farm 'Wilgespruit' No. 3, District of Roodepoort, measuring as such 68.2189 morgen, as held by me under Deed of Transfer No. 1096/1941, dated 27th January, 1941;

LESS such portions at the South-Eastern end as he may reserve; to consolidate the above two portions of land, if necessary, and to obtain a consolidated or registered title in my name; to engage the services of any other person or persons as he may elect upon such basis of remuneration as he may determine whether one person be a qualified attorney to perform all the necessary requirements for the establishment of the holdings and another to be a qualified surveyor to be engaged therein and yet another to be an agent for the selling of the holdings prior to or upon the establishment of the holdings at such price and upon such terms and conditions as my said attorney and agent may lay down or determine - the said qualified attorney to do all such further services as my said attorney and agent may instruct; to deal otherwise with my said land or any portion of same as my said attorney and agent in his discretion may consider fit and he may himself sell or agree to the sale of any part or portion of same to such person, company or body as he may determine for such price and upon such terms as considered fit and expedient by him and to sign all documents in regard thereto to bind any such transaction and to give effect to same; and generally for effecting the purposes aforesaid to do or cause to be done whatsoever shall be requisite, as fully and effectually,

Roper J

for all intents and purposes, as I might or could do if personally present and acting herein - hereby ratifying, allowing and confirming all and whatsoever my said attorney and agent shall lawfully do, or cause to be done, by virtue of these presents.'

The word 'he' in the phrase 'as he may reserve' is apparently a typing error for 'I'.

This document is Annexure 'B' to the present application, and will be hereinafter referred to as Annexure B.

On the same day C. H. Bothma, acting under this special power of attorney on behalf of the respondent, for whom he signed 'p.p.', executed the following document in favour of the applicant and one van Wyk:

'Irrevocable Power of Attorney.

I, the undersigned,

JOHANNES FREDERICK BOTHMA

(born on the 22nd April 1872)

of Wilgespruit, Roodepoort District, herein represented by my son CORNELIUS HENDRIK BOTHMA under and by virtue of a power of attorney granted by me in his favour and which is annexed hereto, do hereby nominate, constitute and appoint -

BENJAMIN GOODBURN GLOVER

of Johannesburg, irrevocably and in rem suam, with power of substitution, to be my lawful attorney for the cutting up into, the laying out and the establishment of agricultural holdings according to law under such name as may be decided upon my land, being:

(1)

Certain Remaining Extent of Portion 7 of the North-Western Portion of the farm Wilgespruit No. 3, District of Roodepoort, measuring as such 65.8316 morgen, as held by me under Deed of Transfer No. 260/1916, dated the 19th January 1916

(2)

Certain Remaining Extent of Portion 8 of the North-Western Portion of the farm Wilgespruit No. 3, District of Roodepoort, measuring as such 68.2189 morgen, as held by me under Deed of Transfer No. 1096/1941, dated the 27th January 1941;

LESS such portion at the South-Eastern end as may be indicated by me which I wish to reserve to myself.

My said attorney is authorised to engage the services of a qualified land surveyor and to pay all the necessary outgoings and requisites for the establishment of the agricultural holdings. He is also authorised, if necessary or considered best, to consolidate the above portions of land and to obtain a consolidated or registered title in my name.

My said attorney shall draw the deeds of sale in regard to all sales of plots, or holdings, and he shall attend to all transfers to purchasers. It shall be his duty to collect and receive all moneys paid under the deeds of sale and he shall in conjunction with my said son open and maintain a separate banking account, to be operated upon by the two of them, wherein all these moneys shall be deposited pending transfer of the plots, or holdings, sold to the respective purchasers - so that the amount held in

Roper J

respect of each such plot, or holding, may be correctly applied and dealt with as occasion may permit or require.

Further, I nominate, constitute and appoint -

REUBEN VAN WYK

of Wilgespruit aforesaid, irrevocably and in rem suam, with power of substitution, to be my sole agent for the selling and disposal of the plots, or holdings, in the said agricultural holdings and he shall be the only person through whom the same may be sold - so that he will be secured for a commission of 5 per cent., or otherwise as permitted by law, on all sales of same.'

The document then contained a number of detailed provisions as to the price at which van Wyk was to sell the plots, and contained the following further provisions:

'My said attorney and my said agent shall be obliged to purchase all plots, or holdings, which may remain unsold in the said agricultural holdings as at the expiration of five (5) years from the date hereof at the price as herein stipulated so that the full clear price of £65 per morgen, calculated as aforesaid, shall be received by me. Transfer of any such may be taken by them, jointly or severally, or in the name of any nominee as purchaser. All costs of transfer shall be paid by the transferee. This clause or stipulation (iv) is and shall be taken and be read as a binding deed of sale and purchase between myself, as seller, and my said attorney and my said agent, as purchasers.

My said attorney and my said agent may select for purchase by themselves, jointly, or by their nominee, an area of land not in excess of 25 (twenty-five) morgen in one block on my aforesaid land (1) and (2) above, which they may have cut off and surveyed and not brought into the said agricultural holdings if they so wish, or they may have the same incorporated therein if they wish, at the cost or price of £65 per morgen clear to me. They may pay for same out of the moneys received by them or accruing or payable to them as above provided or arising thereout, and should there be any deficiency in such price after making such deductions or sets-off the same shall be paid in cash, provided, however, that the area of land so selected shall be defined and reported to me within three months from the date hereof and thereupon my said attorney and my said agent shall be obliged to purchase the same for themselves, or their nominee, and I shall be so obliged to sell. The date of sale and purchase shall be the date upon which the diagram of such area of land shall be approved by the Surveyor-General, or if the land be incorporated in the agricultural holdings scheme then it shall be the date of establishment of the holdings by lawful authority. Payment of the purchase price shall be effected within two and one-half (21/2) years from the date of sale, notwithstanding the provisions for payment as herein set out. A deed of sale upon those terms is hereby constituted.'

The remaining contents of this document are not material to this application.

The document is Annexure A to the petition and will be...