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IN THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION

5363/05

DANIEL BRAITHWAITE APPLICANT

versus

HAZEL BRAITHWAITE 1^ST RESPONDENT

THE REGISTRAR OF DEEDS FOR THE

PROVINCE OF KWAZULU NATAL 2^ND RESPONDENT

SWAZI PUMP AND IRRIGATION (Pty) Ltd 3^RD RESPONDENT

JAMES WILLIAM BRAITHWAITE 4^TH RESPONDENT

RESERVED JUDGMENT

Delivered on:

NTSHANGASE, J

1. In an application, initially citing only the First and Second Respondents, the applicant subsequently sought joinder of the third and fourth respondents and an amendment of the original notice of motion to seek an order:

1. to interdict and restrain the first respondent from in any manner whatsoever alienating, hypotheticating, encumbering or dealing with the immovable property described as portion 46 of the Farm Sanderstead No. 15666, in extent 5,7573ha (the property) currently registered in the names of both the applicant and the first respondent;

2. that the third and fourth respondents authorise the first respondent to take all such steps and sign all documents as are necessary to effect registration of the transfer of the property into the name of the applicant within thirty days of the date of the granting of the order;

3. that upon the third and fourth respondents giving the first respondent such authorisation, the first respondent effect registration of the property into the name of the applicant exclusively, within thirty days of the granting of the order; and

4. that the sheriff of this court be authorised to take the necessary steps to effect registration of the transfer of the property in terms of the order in the event of the first respondent’s failure to comply with such order within the period stipulated.

2. In regard to the respondents’ submission that the application should not have been brought as one of urgency, and with due regard to the applicant’s response thereto, I note that the threat of alienation of the property was not , on the part of the applicant, ill-conceived given the attitude of the first respondent in regard to what she perceives to be her unfettered right of ownership over her portion of the property and given her relationship with applicant which presently appears to be pervaded by acrimony. The issue taken on the application having been brought as one of urgency must fail.

3. In regard to joinder of the third and fourth respondents it is not clear to me whether or not the order for the joinder sought was secured. I do not consider this to be of any consequence in the light of what will emerge later in this judgment.

4. The first respondent submits that this court cannot exercise jurisdiction over the third and fourth respondents and points to the fact that if the order sought were granted, such order would direct a private company registered and based in Swaziland (the third respondent) and a Swazi citizen (fourth respondent), both outside this courts; jurisdiction, to authorise the first respondent to effect registration of her undivided half-share in the property in the name of the applicant.

5. Section 19(1)(b) of the Supreme Court Act 59 of 1959 as amended confers jurisdiction upon a provincial or local division “over any person residing or being outside its area of jurisdiction, who is joined as a party to any cause in relation to which such provincial or local division has jurisdiction or who, in terms of a third party notice becomes a party to such a cause, if the said person resides or is within the area of jurisdiction of any other provincial or local division.” I uphold the submission that this court cannot exercise jurisdiction over the third and fourth respondents.

6. This does not appear to me to dispose of the matter as is contended for on behalf of the respondents as the performance required of the first respondent, to transfer his undivided half-share in the property to the applicant would not, in my view, derive its competence from authorisation form either the third or the fourth respondents.

7. This, in my view, is borne out by the terms of the agreement, which, incidentally, although signed on 14 July 1998 reads that it was “entered into at Matsapa on this 16^th day of July 1998” between the applicant and the third respondent as represented by William James Braithwaite and James William Braithwaite. The terms of the agreement stipulate that “subject to the terms and conditions” set out therein, the third respondent undertook to pay the applicant

“E200 000 (two hundred thousand Emalangeni) (which) is made up as follows:

(i) An amount of E27500 (twenty seven thousand five hundred Emalangeni) being the value of:

certain: Nissan 4 x 4 1 tonner

Registration No.: SD 108 BN

Engine No.: 224471181 W

Chassis No.: ADN 427 0000 W 026950

(ii) An amount of E85 000 (eighty five thousand Emalangeni) being the value of property being:

Certain: Portion 46 farm Sanderstead No. 15566

Measuring: 5,7573 (five comma seven five seven three) ha

Held under: Deed of Transfer No. T.B.A.

3. An amount of E87500 (eighty seven thousand five hundred Emalangeni) to be paid to the member as indicated in clause 4.1.”

Clause 4.1 refers to the mode of payment, identifies the applicant’s bank details, and the provisions to which the payments will be subject.

8. The agreement further provides:

“2.2 It is agreed that the farm will be registered in the names of the member (applicant) and Hazel Braithwaite (first respondent) who are precluded from passing transfer of the property. Full ownership is to pass to Daniel Braithwaite upon his fulfilling all his obligations arising from this agreement. It is recorded that Hazel Braithwaite and the company representatives shall sign and deliver all documents necessary to effect the provisions of this clause.”

9. Under “consequences of acceptance,” the agreement provides:

“6.1 It is agreed that upon accepting payment of any amount referred to in this agreement the member shall:

(i) cease to be a member and/or employee of the company.

2. Subject to full payment being made, cede and transfer all his shares in the company to James William Braithwaite and shall sign and deliver any document necessary to give effect to the transfer of the shares and shall do all the things necessary to give effect to this agreement.”

10. Clearly, according to this, for full ownership of the property to pass to the applicant he is required to fulfil the obligations as referred to in paragraph (9) hereof. No intervention or authorisation from either the third or the fourth respondent is stipulated as a requirement for the property to be passed to the applicant.

11. Although the agreement records that “the company representatives shall sign and deliver all documents necessary to effect the provisions of this clause”, as is indicated in paragraph 8 hereof I am unable to construe that as requiring a need for the representatives of the third respondent, indeed even for the fourth respondent to authorise, in terms of the order prayed, the first respondent to transfer her half share in a property she holds in joint ownership with the applicant. It is therefore not clear to me as to why third and fourth respondents would be required to do so as the order prayed seems to contemplate. It appears to me that the sole requirement for the property to be registered exclusively in the name of the applicant would be the fulfilment by the applicant of the obligations as stipulated in the agreement which are indicated in paragraph (8) hereof.

12. It is now necessary to consider the entitlement or otherwise of the applicant to the performance as sought in the order prayed. He contends that he has fulfilled the particular obligations which would entitle him to the relief sought. In disputing the applicant’s entitlement to this, the first respondent avers that she was never privy to the agreement reached between the third respondent and the applicant insofar as the severance package is concerned and argues that as she was not a party to such agreement she assumed no obligation to effect transfer of her half share in the property to make the applicant the sole owner of the property. She submits that no proper causa for her to do so exists.

13. The applicant points to the following passages in first respondent’s affidavit as indicating the third respondent’s knowledge and acknowledgement of her obligation to transfer her share in the property to him:

“During or about the beginning of 1998 I was approached by William James Braithwaite, my ex-husband alternatively my son, James William Braithwaite who acted on behalf of Swazi Pump and Irrigation (Pty) Ltd. During the said conversation I was advised that:

1. The applicant would no longer be in the employ of the said company;

2. A severance package was arranged insofar as the applicant was concerned;

3. The applicant and I were to sign a purchase agreement in relation to the immovable property in order to ensure that the applicant meet his obligations with the said company in terms of an agreement reached between the applicant and the said company.”

14. Her husband requested her to sign a sale agreement as co-purchaser with the applicant. She states further:

“At the time that the request was made it was however made clear to me that one of the reasons why the property was to be registered in my name was due to the fact that by virtue of the young age of the applicant at the time, it was a real fear that he would squander the money and property received from the company. I agreed with this contention and I co-signed the agreement as a purchaser and further became the joint owner of the property.”

15. In the passages just now quoted and in the sale agreement which the first respondent signed to acquire joint ownership in the property, there is nothing which expressly states that she must relinquish to the applicant her share in the property for any reason, including, as a reason, fulfilment of the particular conditions by the applicant.

16. However what clearly emerges from the first respondent’s affidavit is that she does recognise the property as applicant’s as she herself states that insofar as her joint ownership is concerned that “…one of the reasons why the property was to be registered in (her) name was due to the fact that by virtue of the young age of the applicant at the time, it was a real fear that he would squander the money and property received from the company.”

17. It is therefore not in dispute that the property was known to have accrued to the applicant. I am therefore not persuaded that she is and was unaware of the fact that her co-ownership had to and would in time cease, but that in terms of the agreement which brought about her co-ownership in the property, her obligation to relinquish her joint ownership would arise upon fulfilment of the conditions by the applicant as stipulated in the agreement. There would therefore be just cause for her to effect transfer of her share in the property to the applicant upon fulfilment of the particular conditions by the applicant. The applicant would then be entitled to his rights in terms of the agreement.

18. Whether or not the applicant has fulfilled the conditions as were stipulated in the agreement now falls to be considered. In that regard the applicant refers to Annexure “C” to his founding affidavit, a letter dated 1 October 1998, written under third respondent’s letterheads to applicant, the relevant portion whereof reads:

“I confirm that you have met all your requirements for you to transfer the property into your name.”

That letter purports to have been signed by someone who designated himself as “chairman”. William James Braithwaite’s affidavit confirmed authorship of that letter and that as at the date on which it was written he was functioning as chairman of the third respondent and was accordingly authorised to write the letter and that applicant had in fact fulfilled the requisite conditions. In the affidavit of Derek Steven Braithwaite filed in confirmation of the first respondent’s affidavit he denies, without stating the reason “that William James Braithwaite had the authority to absolve the applicant of his obligations in respect of the company.”

19. For his part the applicant has drawn attention to the failure of the third respondent and James William Braithwaite to file opposition to the application and, in doing so, to gainsay the applicant’s averment regarding fulfilment of the conditions. Indeed no representative of the third respondent has filed any such opposition. I am however unable to conceive the value of this submission when the applicant himself concedes that he still holds the shares which he would have needed to cede and transfer to James William Braithwaite in order to secure full ownership of the property. As reasons for his failure to cede and transfer the shares he states:

“I received a letter from SA Nkosi & Company, James William Braithwaite’s Attorneys at the time, demanding that the shares be transferred to him. I pause to mention that at this stage James William Braithwaite had resigned from the company as a Director and a case of fraud and theft was being investigated against him, resulting in criminal charges being opened against him in Swaziland. I could not at that stage transfer the shares in view of the allegations against him as I could have been regarded as an accomplice.”

20. In this the applicant has given no indication as to how the act of transferring shares to James William Braithwaite would constitute him as an accomplice. I have myself found no such indication; nor have I found an indication why the fact that he had resigned as a Director in the company would disqualify him from acquiring shares from the applicant and to hold shares in the company.

21. The applicant further states:

“He never requested the shares from me again. Consequently, during 2003, alternatively 2004 I offered the shares to James William Braithwaite and he refused to accept the shares. I submit that I spoke to him telephonically and he spoke to me in unsuitable language, refusing the shares.”

This appears to me to imply that James William Braithwaite made it impossible for the applicant to effect the transfer of the shares for him to fulfil the requisite conditions. I do not, in that telephonic conversation, perceive on the part of the applicant, an actual act proper to cede and transfer shares which, if thwarted, would demonstrate that James William Braithwaite made it impossible for the applicant to cede and transfer the shares and thus to fulfil the conditions as stipulated in the agreement.

22. Needless to say therefore that in that averment I find no support for the applicant’s contention that he has fulfilled the particular conditions.

23. I consider that for the foregoing reasons the application must fail.

24. In regard to costs, I consider this to be a proper case for each party to pay own costs. I also did not hear counsel for the respondents to press for an order for costs to be made against the applicant.

25. In the result I make the following order:

1. The application is dismissed.

2. No order for costs is made.

Date of Hearing: 6 December 2006

Date of Judgment:

Counsel for the applicant: Adv M.G. Chetty

Instructed by: Surendra Singh & Associates

Counsel for the First Respondent: Adv L. Combrink

Instructed by: Tomlinson Mnguni James Attorneys

The Second Respondent: The Registrar of Deeds

The Third Respondent: S B Pump & Irrigation (Pty) Ltd

The Fourth Respondent: James William Braithwaite

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