IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case Number: 20739/2011

In the matter between:

And

Semi Conductor Services Export Division 
(Proprietary) Limited						Respondent 

JUDGMENT DELIVERED ON 1 MARCH 2012

Baartman, J

The respondent was also the registered owner of Beaufort West Erf 303 over which 2 mortgage bonds were registered in favour of the applicant, B25133/1996 and B58872/2007.
[3] The applicant alleged that the respondent had defaulted on its bond repayments and that it was entitled to perfect the notarial bond. The applicant, in response to the respondent's denial of default, put up the payment history of the account relevant to this application. The payment history indicated that an instalment of R7 442.27 was due. The respondent has not disputed the alleged instalment. The payment history further indicated that the respondent only paid R4 000 in January 2011, R3 000 in February 2011 and R3 000 in March 2011. I do not repeat all the payments as they appear from the payment history; suffice it to say, the trend of short payments continued with sporadic increases in payments in an apparent attempt to make up for the short payment of previous months.

[5] That finding is relevant to an enquiry into the applicant's right to seek the perfection of the notarial bond. The terms of the notarial bond relevant for purposes of this judgment are as follows:
"... The Appearer hereby declares to bind generally the Mortgagor's movable property both such as the Mortgagor already may or may in future become possessed of, without any exception, submitting them all and the choice thereof to constraint and execution as the law directs as well as, without limiting the generality of the aforegoing, the following movable property:

All Fixtures and Fittings
presently located at Hotel Formula 1, 144 Donkin Street, Beaufort West 6970
as well as the Mortgagor's right, title and interest in and to any exiting
lease or hire or suspensive sole agreement in regard to any or all of
the aforegoing movable property	

Clause 10

[6] I am persuaded that the applicant was entitled to perfect the bond pursuant to the respondent's default.
[7] Even if I am wrong, the applicant has set out facts from which it could reasonably have inferred that it was appropriate to perfect the bond as it was entitled to do in terms of paragraph 10 of the notarial bond referred to above. Those facts are as follows:

(b) Van Zyl is also the sole trustee of the Moto Trust as well as the sole director and shareholder of Westgate Motors (Edms) Bpk.
(c) The Moto Trust is indebted to the applicant and the applicant has issued summons, under case number 14978/2011, for the recovery of that debt. Westgate Motors is also a defendant in that action. The action is defended and pending.
(d) The respondent stood surety for the Moto Trust debt but was unable to satisfy its indebtedness in respect of the surety when called upon to do so
(e) The applicant served a demand in terms of section 345 of the Companies Act, 61 of 1973 on the respondent. The respondent has not denied that the provisions are applicable to the debt, nor has it responded to the demand. It follows that the respondent is deemed to be unable to pay its debts.
[8] The respondent has alleged that the notarial bond was obtained in a fraudulent manner and therefore was invalid. The respondent has alleged the fraud as follows:
(a) The respondent is the owner of the Donkin Street property, referred to in paragraph 2 above. It had entered into a 25-year lease with the Formula 1 Group and that group is operating a hotel from the premises.
(b) The immoveable property at the Donkin Street property belongs to the Formula 1 Group. The respondent alleged that Fannie Erasmus, at the time an employee at the applicant's Oudtshoorn branch, was aware that the moveable property at the Donkin Street premises belonged to a third party. Therefore, so the respondent contends:

11.10. In order to follow the paper trail that resulted in the inception/existence of this notahal bond ...which at this point in time seems to have been created fraudulently as the respondent has no movables whatsoever that could have been given as security to the Applicant."

".. .Dit blyk uit die getuienis wat deur appellant aangebied is (wat ons vir doeleindes van die uitspraak aanvaar), dat Minassian op 29 September 1993 die eienaar van die toerusting geword het. Die notariele verband is egter reeds op 26 Mei 1993 geregistreer.
Namens respondent is voor ons betoog dat al het Minassian eers eienaar van die toerusting geword nadat die notariele verband geregistreer is, sodanige verkryging van eiendomsreg deur Minassian aan die pandgewing kragtens die notariele verband regswerking gegee het voordat appellant enige regte daarop gekry het. As ondersteuning vir die betoog is verwys na die volgende stelling in Wille's Mortgage and Pledge in South Africa 3de uitg (deur Scott an Scott) te 35:
If a person mortgages the property of another without the latteris consent or authority, and the mortgagor subsequently acquires the dominium of the property, the acquisition of the dominium has the effect of making the mortgage valid."
Die gesag waama die skrywers verwys terstawing van die stelling, te wete Codex 8.16.5, Digesta 13.7.41, Van Leeuwen Censura

CONCLUSION

(.

(a) The application is granted in terms of the draft annexed hereto
BAARTMAN J

ON THURSDAY, 1 MARCH 2012
BEFORE THE HONOURABLE Ms JUSTICE E D BAARTMAN

Case No: 20739/2011
In the matter between:

and

SEMI CONDUCTOR SERVICES EXPORT

DRAFT ORDER

Having read the papers filed of record and having heard counsel for the parties, it is hereby ordered as follows:

1. The notarial bond BN49988/2007 held by the Applicant is perfected and the Respondent is ordered to point out and to hand over to the Sheriff of the High Court, all movable property owned by it and held at-
1.1. 144 Donkin Street, Beaufort West, Western Cape; and
1.2. any other place.

3. This order will not prejudice any real rights held by any other creditor of the Respondent.
4. The Applicant is authorised to -

4.1. take possession of all goods attached by the Sheriff in terms of this order, and to take all such steps as may be required in order to sell or otherwise dispose of the goods in such manner and on such terms and conditions as the Applicant may deem necessary;
4.2. transfer ownership of the goods sold as aforesaid to the purchaser(s) thereof;
4.3. accept payment for the goods sold as aforesaid, and to apply set-off in respect of the amounts so received against the Respondent's indebtedness to the Applicant, and to pay to the Respondent any excess amount, or in the event of any shortfall to proceed against the Respondent for the payment thereof.
5.      The Respondent shall pay the costs of this application on the scale as between attorney and client, as taxed or agreed.

BY ORDER OF THE COURT
COURT REGISTRAR