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Not reportable

Delivered 22 June 2007

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Date: 2007-06-22

Case Number: 40329/06

In the matter between:

DANIEL DIPHAPHANG SHIBAMBO Applicant

and

FLORENCE NOMTHANDOZO SHIBAMBO First Respondent

EMMANUEL GEORGE SHIBAMBO Second Respondent

ELIAS MOZI SHIBAMBO Third Respondent

EDMUND SHIBAMBO Fourth Respondent

LORRAINE SHIBAMBO Fifth Respondent

SOPHIE SHIKWAMANI SHIBAMBO Sixth Respondent

AUGUSTINE SHIBAMBO Seventh Respondent

STAR ARTS PRODUCTIONS CC Eighth Respondent

PHILLIPUS GIOVANNI TORRE N.O. Ninth Respondent

GAIL LYNN WARRICKER N.O. Tenth Respondent

REGISTRAR OF DEEDS, PRETORIA Eleventh Respondent

MASTER OF THE HIGH COURT, PRETORIA Twelfth Respondent

MASTER OF THE HIGH COURT,

MMABATHO Thirteenth Respondent

COSMOPOLITAN PROJECTS (TSHWANE

(PTY) LTD Fourteenth Respondent

JUDGMENT

SOUTHWOOD J

[1] The applicant seeks rescission of an order granted by this court on 14 December 2006. The order reads as follows:

‘1. The transfer of the property known as Remaining Extent of Portion 30 (a portion of portion 14) of the farm Nooitgedacht 256 now Odinburg Gardens, Registration Division JR, Province of North West, measuring 12,3147 hectares may proceed forthwith.

2. The balance of the purchase price which is payable by the seventh respondent to the first respondent on registration of the aforesaid property is to be paid into the trust account of Van Rensburg Attorneys.

a. The aforesaid money must be invested in an interest bearing trust account pending the finalisation of an action to be instituted by the applicants against the first respondent within 30 days of this order.

b. If it is found in the abovementioned action that the first respondent was indeed entitled to the transfer of the property mentioned above, the amount that was paid into the trust account of Van Rensburg Attorneys, together with interest shall be paid to first respondent in the action.

c. If it is found in the abovementioned action that the first respondent was not entitled to the transfer of the property mentioned above, the amount that was paid into the trust account of Van Rensburg Attorneys, together with interest shall be paid to the Shibambo Family (including the applicants) for proper distribution.

3. The transfer of the property known as Remaining extent of portion 14 (a portion of portion 11) of the farm Nooitgedacht 256, Registration Division JR, province of North West, measuring 74,8478 hectares, is prohibited pending the finalisation of the action referred to in paragraph 2, to be instituted;

4. The costs of the applicants and the respondents are to be paid by the first respondent.’

The first and seventh respondents referred to in the order are respectively the eighth and fourteenth respondents in the present application. It must be noted that the ‘Shibambo family’ referred to in the order is not defined or determined in the application. The term refers to descendants of Yinkwane John Shibambo. As will appear later there are about 40 surviving descendants.

The applicant was not a party to those proceedings and, as will appear later, has no interest in the properties which are the subject of the order.

[2] The order was granted on 14 December 2006 against the background of the following facts which are either common cause or cannot be disputed:

1. Yinkwane John Shibambo (‘the deceased’) was born on 15 June 1906 and passed away on 23 July 1984;

2. In 1965 the deceased became the owner of Portion 14 (a portion of portion 11) of the farm Nooitgedacht No 256, Registration Division JR, Transvaal, measuring 220,0609 hectares (‘the property’) in terms of deed of transfer 7675/1965;

3. The deceased was married to five women either by common law or statutory law. They were –

1. the first respondent;

2. Magdelene Manosi, the applicant’s mother who has passed away;

3. Ruth, who the deceased divorced;

4. Esther, who the deceased divorced; and

5. Mpaki, who passed away.

In addition, at the time of his death, the deceased was living with another woman, Idah;

4. The deceased had children by all these women. The descendants of the deceased are set out in Annexure C1 to C7 to the applicant’s founding affidavit. There are 20 surviving children and 19 grandchildren;

5. On 23 January 1972 the deceased executed a will and on 29 November 1976 a second will. In the second will the deceased revoked all previous wills made by him and appointed the applicant and the first respondent as his only heirs in equal shares and the applicant as his sole heir, if the first respondent predeceased him or died simultaneously with him or within 30 days of his death. The deceased appointed Nedbank Limited and the applicant as the executors in his estate;

6. On 5 October 1981 the deceased sold the property to Shibambo Enterprises (Pty) Ltd (‘the company’) represented by the applicant for a purchase price of R235 000 payable as follows –

1. R116 000 by way of set off;

2. the balance in instalments of R2 000 per month payable from October 1986;

The company did not pay the balance of the purchase price.
The papers do not disclose the identity of the company’s shareholders. The applicant and one J.J.N. Fourie were the directors.

7. On 1 February 1983 the deceased signed a power of attorney in favour of Spencer Percival Minchin to transfer the property to the company;

8. After the deceased passed away on 23 July 1984 no steps were taken to have the deceased’s estate wound up until 1996. Neither the applicant nor the respondents were aware of the deceased’s second will;

9. On 21 April 1988 the property was transferred to the company pursuant to the power of attorney executed by the deceased on 1 February 1983. (This is not explained in the papers);

10. In 1996 a developer, Makbuild (Pty) Ltd (‘Makbuild’), approached the company with a view to developing the property under a Land Availability Agreement. This prompted the first respondent to approach the Master with the will dated 23 January 1972. The first respondent contended that the will was illegible and the Master ruled that it was invalid and that the deceased had died intestate. On 20 January 1996 the Master appointed the first respondent as executrix in the deceased’s estate. On 31 July 1997 an attorney, Nantes Swart, who had been appointed by the first respondent in her capacity as executrix in the estate of the deceased, launched an urgent application seeking an interdict prohibiting the company from alienating or encumbering the property pending finalisation of an action to be instituted for the setting aside of the transfer of ‘such portion of the said property to which no rights have accrued to third parties’;

11. This application was never heard. The applicant had become aware of a second will of the deceased and instructed his present attorney of record to make enquiries about that will. Eventually, at the end of 1997, the second will was discovered in the protocol of Syfrets (Pty) Ltd. After Syfrets renounced its nomination as executor (it is not explained why), Swart withdrew as attorney for the first respondent and the matter did not proceed. Neither did the administration of the deceased’s estate, despite the fact that the applicant was now the only person entitled to be appointed executor. Because of the litigation Makbuild withdrew from the contract;

12. The company experienced financial difficulties throughout the 1990’s. These were exacerbated by the litigation referred to. On 18 May 1999 the company was liquidated by special resolution. The applicant and his co-director, prepared a statement of affairs in terms of section 363 of the Companies Act. The statement reflected liabilities totalling R10 852 192,00 and a single asset (the property) with an estimated forced sale value of R1 million. The liabilities included a claim of R450 000 by the deceased’s estate and a claim of R275 000 by the applicant;

13. On 28 June 1999 the ninth and tenth respondents were appointed the joint provisional liquidators of the company and on 16 September 1999 the joint liquidators;

14. Attempts were made to sell the property. The applicant’s sons and his brother, the second respondent, wanted to buy the property through a company called Superdome Enterprises (Pty) Ltd, but were unable to raise the funds. Eventually the Tshwane Metropolitan Council became interested in acquiring a part of the property and in 2004 the Metro expropriated a portion of the property for about R1,4 million;

15. On 17 January 2005 the ninth and tenth respondents entered into a written agreement with Star Arts Productions CC, the eighth respondent, in terms of which the ninth and tenth respondents sold to the eighth respondent for a purchase price of R80 000 the immovable property known as the Remaining Extent of Portion 14 (a portion of portion 11) of the farm Nooitgedacht, 256, Registration Division JR, measuring 74,8478 hectares;

16. On 11 January 2006 the ninth and tenth respondents and the eighth respondent entered into two more written agreements in terms of which –

1. the ninth and tenth respondents sold to the eighth respondent for a purchase price of R40 000 the immovable property known as the Remaining Extent of Portion 14 (a portion of portion 11) of the farm Nooitgedacht, Registration Division JR, measuring 74,8478 hectares;

2. the ninth and tenth respondents sold to the eighth respondent for a purchase price of R40 000 the immovable property known as the Remaining Extent of Portion 30 (a portion of portion 14) of the farm Nooitgedacht 256, now Odinburg Gardens, Registration Division JR measuring 12,3147 hectares;

17. At all relevant times the applicant’s two sons, Bekkie Gladwin and Sponono Ezekiel Shibambo, held the members interest in the eighth respondent;

18. On 31 July 2006 the eighth respondent entered into a written agreement with Cosmopolitan Projects Tshwane (Pty) Ltd, the fourteenth respondent, in terms of which the eighth respondent sold to the fourteenth respondent for a purchase price of R4 634 831,00 the remainder of the township known as Odinburg Gardens situated at Portion 30 (a portion of portion 14) of the farm Nooitgedacht 256, Registration Division JR consisting of 165 erven listed on Annexure ‘A’ (as revised) to the agreement;

19. On 3 October 2006 the eighth respondent and the fourteenth respondent entered into an addendum to the agreement dated 31 July 2006 in terms of which, inter alia, the parties amended the purchase price to R4 522 470,00 and the terms of payment;

20. The sale of the remainder of the township known as Odinburg Gardens, spurred various members of the deceased’s extended family, the first, second, third, fourth, fifth, sixth and seventh respondents, as the first to seventh applicants respectively, to launch an urgent application seeking the following relief against the eighth, ninth, tenth and fourteenth respondents:

‘2. That the transfer of the immovable properties known as Remaining Extent of Portion 14 (a portion of portion 11) of the farm Nooitgedacht 256, Registration Division JR, province of North West, measuring 74,8478 hectares and Remaining Extent of Portion 30 (a portion of portion 14) of the farm Nooitgedacht 256 now Odinburg Gardens, Registration Division JR, province of North West, measuring 12,3147 hectares, be held in abeyance pending the finalisation of an application to the fifth respondent for the setting aside of the confirmation of the first liquidation, distribution and contribution account of Shibambo Enterprises (Pty) Ltd (in liquidation) and in application/action to be instituted for the setting aside of the sale of the abovementioned properties to the first respondent;

3. That this order will lapse if the application to the fifth respondent and/or the application/action for the setting aside of the sale of immovable property referred to in paragraph 2, is not instituted within 30 (thirty) Court days of this order.

4. That the costs of the application be paid by Shibambo Enterprises (Pty) Ltd (in liquidation).’;

21. The application was opposed by the ninth, tenth and fourteenth respondents who filed answering affidavits. The eighth respondent did not give notice of its intention to oppose the application or file an answering affidavit. However it is common cause that when the matter was at court on 13 December 2006 the eighth, ninth, tenth and fourteenth respondents were represented and that the matter stood down for the eighth respondent’s counsel to peruse the papers. It is further common cause that by the next day, the ninth, tenth and fourteenth respondents had settled the matter and prepared a draft order but that the eighth respondent was not prepared to agree to the order. It is also common cause that after giving the eighth respondent’s counsel an opportunity to address him on why the draft order should not be made an order of court the presiding judge, without giving reasons, made the draft order an order of court.

22. The first to seventh respondents (as first to seventh applicants) sought the relief in the notice of motion as the beneficiary (in the case of the first respondent) and interested parties in the estate of the deceased (in the case of the third, fourth, fifth, sixth and seventh respondents).

23. The eighth respondent has not sought leave to appeal against the order. However on 24 January 20067 the applicant’s son, Bekkie Gladwin Shibambo, unsuccessfully applied for the order to be rescinded.

(24) In their answering affidavit the ninth and tenth respondents indicated that they did not oppose the grant of an order that the transfer of the properties be held in abeyance pending the finalisation of an action to set aside the sale of the properties. The ninth and tenth respondents pointed out that an application for the setting aside of the confirmation of the first liquidation and distribution account was not legally possible. They also pointed out that the liquidation and distribution account was confirmed by the Master on 11 November 2004 and that they had distributed dividends in accordance with the account in November 2004. They also expressed the view that the applicant should have been joined as a party in the application because he had an interest in the setting aside of the sale of the property.

(25) The ninth and tenth respondents also alleged that Bekkie Shibambo, the son of the applicant, representing the Shibambo family told them that if the property was sold to an outside party the Shibambos would organise a riot to disrupt the sale. According to the ninth and tenth respondents the Shibambo family lived on the property at the time. After the expropriation the ninth and tenth respondents were informed that a representative of the Shibambo family wanted to purchase the remaining part of the property on behalf of the Shibambo family. Because they believed that the Shibambo family was in favour of the sale the ninth and tenth respondents were also in favour of the transaction. They asked Bekkie Shibambo for a document, signed by the members of the Shibambo family, indicating that he was authorised to negotiate on their behalf. Bekkie Shibambo produced such a document which they annexed. The ninth and tenth respondents also demanded a warranty in the agreement that the Shibambo family knew and approved of the transaction. This is found in clause 7 of the agreement dated 17 January 2005.

[3] On 20 March 2007 the applicant launched this application seeking an order that the order granted by this court on 14 December 2006 be rescinded and that the first to seventh respondents be ordered to pay the costs of the application. The first to seventh respondents oppose the application and have filed answering affidavits.

[4] The respondents contend that the application should be dismissed because the applicant does not have locus standi. The applicant claims to have a direct and substantial interest in the application brought by the first to seventh respondents and alleges that he should have been joined as a party in that application. He claims to have locus standi to seek relief in this application because –

1. he is a creditor of the company;

2. he was a director of the company;

3. he is the sole nominated executor of the deceased’s estate.

[5] The concept of locus standi is not a technical concept with clearly defined boundaries. Generally it is required that the plaintiff or applicant must have a direct interest in the relief sought – see Jacobs en ‘n Ander v Waks en Andere [1991] ZASCA 152; 1992 (1) SA 521 (A) at 534J-535E and Cabinet of the Transitional Government of South West Africa v Eims 1988 (3) SA 369 (A) at 387H-398B and the cases there cited.

[6] The respondents sought an order to prohibit the transfer of properties from the ninth and tenth respondents to the eighth respondent and from the eighth to the fourteenth respondent. The company became the owner of the properties in 1988 and accordingly became entitled to deal with them as it wished. The ninth and tenth respondents were authorised to deal with the properties and sold them to the eighth respondent which sold one to the fourteenth respondent. The applicant has no interest in the properties and no standing which would require that he be joined in the first application. He also has no interest in the order made which would give him locus standi to apply for the rescission of the order. Even if that order was wrongly granted, as it appears to have been, that would not give the applicant locus standi in this application.

[7] The application is therefore dismissed and the applicant is ordered to pay the costs.

____________________

B.R. SOUTHWOOD

JUDGE OF THE HIGH COURT

CASE NO: 40329/06

HEARD ON: 2007-06-13

FOR THE APPLICANT: ADV. C. VAN JAARSVELD

INSTRUCTED BY: Mr Romanos of Romanos Attorneys

FOR THE FIRST TO SEVENTH RESPONDENTS: ADV.N. JANSE VAN

NIEUWENHUIZEN

INSTRUCTED BY: Mr Venn of Venn & Muller Attorneys

DATE OF JUDGMENT: 2007-06-22

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