Simpson v Klein NO and Others

• Jurisdiction: South Africa
• Judge: Kriegler J
• Judgment Date: 16 May 1986
• Hearing Date: 14 May 1986
• Court: Witwatersrand Local Division

Kriegler J:

This application relates to a stand known as erf 653 in the township of Florida. The applicant is the purchaser under an instalment sale agreement of that land. The first D respondent is the trustee of the seller of that land, who was sequestrated some time after the transaction was concluded. The second respondent is a third party who purchased the stand at a sale in execution shortly before sequestration supervened. The third respondent is the Registrar of Deeds, Johannesburg. The fourth respondent is the Deputy-Sheriff of Roodepoort who had E attached the stand in execution of a judgment of the Transvaal Provincial Division of the Supreme Court and who had sold the stand at the sale in execution to the second respondent. The fifth respondent is the United Building Society who holds a mortgage bond over the property.

At the hearing, only the second respondent opposed the relief sought by the applicant although an affidavit by the fourth F respondent was attached to the second respondent's answering affidavit. In that affidavit the fourth respondent adopts the attitude that if the application were to be dismissed, he would be willing to transfer the property to the second respondent.

Before alluding to the relief sought in the notice of motion in G more detail, it would be useful to give a brief history of the events. By deed of sale dated 10 September 1984 the applicant bought the stand from one James. The purchase price was R53 000. A deposit of R11 000 was payable and thereafter 36 monthly instalments of R680 each were payable, commencing on 1 October 1984. Occupation was to be given during October 1984. The H applicant duly took occupation during October and spent some R9 000 in improvements to the property. He also paid the monthly instalments into a banking account for the credit of the seller. Those payments continued until the end of October 1985. The total instalments paid amounted to R9 550. The balance owing under the deed of sale as at that date was the I sum of R40 412,50. In terms of the deed of sale the outstanding balance bore interest at the rate of 17½% per annum.

Unbeknown to the applicant, two warrants of execution had been issued out of the Transvaal Provincial Division of the Supreme Court in August 1984 and a third warrant had been issued early in October of that year. In February 1985 the fourth respondent J duly advertised the proposed sale in execution of the property and on 22 February 1985 the sale

Kriegler J

took place. At that sale the second respondent bought the A property for R40 500. Later that same day the second respondent communicated with the applicant, advised him of the purchase and required him to vacate.

During the time James, the seller, was patently in financial difficulties of considerable moment. On 29 May 1985 a provisional order of sequestration was granted and his estate B was finally sequestrated on 2 July 1985. In the interim there had been negotiations between the second respondent and the applicant and on 28 May 1985 they concluded a transaction whereby the applicant bought the stand from the second respondent for a purchase price of R53 000.

The property had, by the date of sequestration, not yet been transferred by the fourth respondent to the second respondent. C The applicant, in the light of those circumstances, communicated with the first respondent in his capacity' as the trustee of the insolvent seller of the stand and his attitude was that he was obliged and prepared to transfer the property to the applicant, subject to the latter performing his obligations in terms of the original deed of sale. The second D respondent insisted that he was entitled to transfer. In the light of that impasse, the present proceedings were launched in March of this year. The notice of motion reads as follows.

'1.

Be pleased to take notice that Scott Charles Simpson (hereinafter referred to as "the applicant") intends to make application to the above honourable Court for E an order -

1.1

directing Norman Klein NO (hereinafter referred to as the first respondent) to sign within seven days of the service of this order upon him all such documents as may be necessary and as may be furnished to him for signature to effect registration of transfer F of erf 653, in the township of Florida, situate at 43 Thistle Street, Florida, to the applicant;

1.2

interdicting the Registrar of Deeds from registering transfer of the property to any person other than the applicant, until such time as registration of transfer has been effected to the applicant in accordance with G 1.1 above;

1.3

directing that the second respondent is not entitled to transfer of the property from the fourth respondent;

1.4

directing that the costs of this application be paid by the first and second respondent jointly and severally;

1.5

granting the applicant such further or alternative relief as this honourable Court H deems fit.'

In the course of argument on behalf of the applicant, para 1. 4 of the notice of motion was qualified to this extent that the applicant does not seek an order for costs against first and second respondents jointly and severally, but solely as against the second respondent.

The affidavits raise a number of issues to which I wish to I refer briefly. The fundamental facts as set out in the founding affidavit are not in issue and form the basis of the factual summary already furnished. In the answering affidavit the second respondent made the point that inasmuch as the applicant had failed to register the deed of sale, ie to record it in terms of s 20 of the Alienation of Land Act 68 of 1981, he was not entitled to any relief. The fundamental point taken J by the second

Kriegler J

A respondent was that the dominium of James, the seller of the land, ceased upon the sale in execution on 22 February 1985 and that since that date such dominium vested in the fourth respondent.

In the replying affidavit the applicant alleged that the attachment had been defective in that the fourth respondent, in B breach of Rule 46 of the Uniform Rules of Court, had failed to give notice to the applicant qua occupant of the property at the time of attachment. In the course of argument, however, it transpired that that point was factually untenable. Indeed, all three of the writs had...