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IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 22577/2007

DATE: 29/10/2007

NOT REPORTABLE

IN THE MATTER BETWEEN

SHOU-CHUAN HUANG APPLICANT

AND

JEN-YUAN DU 1^ST RESPONDENT

WEIGUANG SUN 2^ND RESPONDENT

PHOENIX VALLEY INVESTMENTS CC 3^RD RESPONDENT

JUDGMENT

SERITI, J

1. INTRODUCTION

This matter came to court by way of motion.

In the notice of motion the applicant is seeking an order in the following terms:

1.1 that the first, second and third respondents be ordered to sign all necessary documentation and to do all things necessary to transfer the north west quarter of the remaining extent of Holding 286, Pomona Estates Agricultural Holdings, Registration Division IR, Transvaal (remaining extent of Erf 1629, Pomona Ext 42) measuring 1.0112 hectares, registered in the name of the third respondent under transfer number T158254/2006 within ten days of the granting of this order;

1.2 that in the event that the respondents fail to abide by prayer 1, supra, the Sheriff of this Honourable Court be authorised to sign all necessary documentation and to do all things necessary to effect transfer of the property into the name of the applicant;

1.3 that the first, second and third respondents are ordered jointly and severally to pay the costs of this application, the one paying the other to be absolved.

2. FOUNDING AFFIDAVIT

It was attested to by Mr Shou-Chuan Huang. He describes the first and second respondent and also alleges that the third respondent is a close corporation with two members, namely the first and second respondents.

0n 23 July 2004, and in Chinese, he made a written offer to purchase the property in question from the first respondent. 0n 26 July 2004 the first respondent accepted the offer when he signed the relevant document.

The sale agreement was concluded in Chinese, and as that was going to complicate issues when it comes to the transfer of the property, they then decided to cancel the Chinese agreement and replace it with a new agreement in English.

They scheduled an appointment with Attorney Sun who suggested that he draft two agreements for them, one agreement to cancel the Chinese agreement and a new purchase agreement in the English language.

0n 8 September 2007 (I think it should read 2004) they both went to see Attorney Sun, and at the latter's offices the two agreements were signed.

In terms of their agreement, the first respondent agreed to sell the property to him for an amount of R675 000,00.

First respondent told him that the transfer of the property into his name would take place upon the finalisation of the subdivision of the property.

He telephoned the first respondent on several occasions enquiring about the progress of the subdivision but failed to elicit a direct answer from the first respondent.

0n 15 August 2006 he telephoned the transferring attorney Mr Willem Esterhuizen and the latter informed him that the property is now owned by the third respondent.

He investigated further and he discovered that the first and second respondents each hold a 50% members interest in the third respondent.

He instructed his attorneys to write a letter of demand to the first respondent and same was written on 5 April 2007.

0n 24 April first respondent's attorneys responded. In their letter they stated, inter alia, that the property is no longer registered in the name of the first respondent and that he accordingly cannot transfer the property, but that the first respondent had offered to return to him the deposit of R50 000,00 plus interest and to cancel the agreement.

Through a deed search it was ascertained, inter alia, that the property has indeed been subdivided and that the portion sold to him is after the subdivision known as Portion 0 of Erf 1629.

He also obtained a copy of the title deed T158254/06 from which it is clear that Erf 1629, Pomona Extention has indeed been transferred into the name of the third respondent on 27 November 2006.

3. FIRST, SECOND AND THIRD RESPONDENTS' ANSWERING AFFIDAVIT

It was attested to by Mr Jen-Yuan Du. He alleges that he deposes to the affidavit in his personal capacity and in his capacity as a 50% member of the third respondent. He is duly authorised to depose to the affidavit on behalf of second and third respondents.

Both agreements of sale relied upon by the applicant are not legal binding agreements of the sale of the third respondent's immovable property.

At the time of signing of the agreement in Chinese language, the applicant, with the intention to mislead him, presented to him that the said agreement was only a receipt and not a binding legal agreement of sale of immovable property.

At a later stage he signed the Deed of Sale and Addendum to Deed of Sale under duress, alternatively due to the applicant exercising undue influence and that there was never any consensus pertaining to the alleged sale of immovable property.

At all relevant times he was the owner of a portion of the remaining extent of holding 286, Pomona Estates Agricultural Holdings.

He further alleges that the applicant approached him with a certain business proposal, to develop his property.

0n or about 26 July 2004 the applicant gave him R50 000,00 in cash as his contribution to their business venture. At that stage, the applicant also handed him a document written in Chinese, and explained to him that the said document is a receipt for the R50 000,00. He did not read the document. He quickly signed the "receipt" and thereafter the applicant handed him a copy thereof. He also promised him that he will pay another R300 000,00 to him in a few weeks time, but he never paid the said amount.

At some stage the applicant informed him that he would like to prepare an English contract, because the Chinese document, which he believed to be a receipt, is not acceptable in South Africa. He thought that the contract would be pertaining to the development of the whole of the property.

During the night of 27 July 2004 the applicant phoned him and explained to him that he required him to transfer ¼ of the property into his name. Applicant also explained to him that they had to sign an English contract to effect the said transfer of the property. He refused. Applicant threatened him with an urgent application.

In the evening of 28 July 2004 he received a threatening telephone call from the applicant who was insisting on the transfer of the property in his name.

A few days thereafter, applicant informed him and Mr Cheng that he had connections with the Italian Black Gangsters (Mafia) in Johannesburg. Applicant further stated that if they do not want any trouble, they should do as he instructed them.

As a result of threats he received from the applicant, he decided to comply with the demands of the applicant.

0n 27 August 2004 a meeting was arranged with Mr Sun, an attorney in Rosebank. The attorney was requested to draft an English contract.

0n 8 September he went to the said attorney's office with his friend Mr Cheng to sign the English deed of sale.

At a later stage he met the second respondent who then became his business partner and they subdivided the property, after he sold the property to the third respondent.

He entered into a deed of sale with the third respondent on 9 March 2006. The deed of sale pertains only to approximately three hectares, being a three quarter portion of the property. The agreement further stipulates that the purchaser, being the third respondent, agrees to transfer the one hectare portion, being ¼ of the property back to the seller after proclamation of the township known as Pomona Extention 42.

He tenders to refund the amount of R50 000,00 to the applicant.

A confirmatory affidavit of Mr Weiguang Sun, the second respondent, was attached.

4. APPLICANT'S REPLYING AFFIDAVIT

It was attested by the applicant. He denies that he ever misrepresented any facts and that there was no undue influence of the first respondent. He alleges that there was consensus between first respondent and him to enter into a sale agreement. After they agreed that he will buy a portion of the respondent's land he informed the respondent that he will draft an agreement and thereafter they will have to meet to sign the said agreement.

He drafted the agreement in Chinese, and he met the first respondent on 23 July 2006 and he gave first respondent to sign after he (the deponent) has signed it. First respondent said he first want to think about the offer.

They met again on 26 July 2004 at a restaurant and the first respondent signed the agreement. He then gave first respondent R50 000,00 and first respondent acknowledged receipt thereof by adding the following words beneath the signatures:

"Hereby received R50 000,00 (including deposit R10 000,00) from the purchaser (signature of deponent)."

They later signed an agreement in the English language in order to make it possible that the property can be transferred into his name. They were assisted by Mr Sun, an attorney who was known to the first respondent. First respondent made the appointment with the said attorney.

Prior to the first respondent signing the agreement in Chinese, they went to Mr Lai, a friend of the first respondent. Mr Lai, after going through the agreement, advised first respondent to sign same. He does not know the Mafia group the first respondent referred to.

After consulting with Mr Sun, the latter told them that he will draft the agreements and he will phone them as soon as they are ready so that they should come and sign them.

0n 7 September 2004 he received a phone call from Mr Sun who advised him to attend his offices on 8 September 2004 at 15:00 to sign the agreements drafted by him.

0n the following day he attended the offices of Mr Sun where he met the first respondent. They signed the agreements and two witnesses, namely Mr Sun and an attorney who was in his employment, witnessed their signatures.

The heading of the agreement in Chinese clearly states "Deed of Sale".

A confirmatory affidavit signed by Mr Hsing Sung Lai was attached to the replying affidavit.

He alleges that first respondent is well known to him and he is their family friend. He confirms the contents of the applicant's affidavit in so far as the contents relates to him.

He specifically confirms that on 26 July 2004, at his offices, he met the applicant and the first respondent. After perusing the agreement written in Chinese he advised the first respondent that if he wants to sell his land he can sign the agreement.

At that time first respondent accepted the offer as contained in the agreement which was already signed by the applicant.

A few months later he was informed by the first respondent that he has signed the Chinese agreement and later the English Deed of Sale at the offices of Attorney Sun.

A confirmatory affidavit of Attorney Michael Sun was also attached to the replying affidavit.

He basically confirmed the version of the applicant in so far as it relates to him.

He further alleges that the parties negotiated the purchase price and later, on 8 September 2004 the agreements were signed and he signed as one of the witnesses.

5. SECOND RESPONDENT'S SUPPLEMENTARY AFFIDAVIT

The second respondent alleges that he signed the affidavit after he discussed with first respondent who is in Taiwan. The first respondent explained to him that Mr Lai is not a close personal friend but an acquaintance. Mr Lai has, at the relevant period, been a close friend of the applicant.

He further alleges that the first respondent indicated to him that the Chinese contract was not signed after the first respondent was advised about contents thereof by Mr Lai.

6. FINDINGS

It is common cause between the parties that there is an agreement written in Chinese and two other agreements prepared by Attorney Sun which were signed by the applicant and the first respondent.

It is also common cause that at the time when the agreement written in Chinese was signed by the first respondent, applicant paid an amount of R50 000,00 to the first respondent.

It is also not in dispute that the first respondent has transferred his entire property, including the portion in dispute to the third respondent, and the first respondent and the second respondent each hold 50% of the members interest in the third respondent.

In his Heads of Argument the respondents' counsel raises, inter alia, two grounds of opposition to the application, namely that when the first respondent signed the agreement in Chinese language he was misled to think that he is signing for the receipt of an amount of R50 000,00 and that the agreement in English he signed same under duress.

I will first deal with the signing of the agreement in Chinese language.

A translation of the said agreement is attached to the papers.

It is a two page document and the heading thereof indicates that it is a deed of sale. It was signed by both parties. The applicant signed it on 23 July 2004 and the first respondent signed it on 26 July 2004.

Below their signatures the following appears:

"Hereby received R50 000 (including deposit R10 000) from the purchaser (signed)."

The document is written in Chinese which the first respondent understands and I cannot understand how the first respondent can possibly allege that when he signed the said document, he thought that he was simply acknowledging receipt of the R50 000,00.

In fact Mr Lai, who is well known to the first respondent and applicant, states that he met both parties and after reading the document, he advised the first respondent that he can sign the document if he wants to sell his property.

My view is that the version of the first respondent is inherently improbable and that the more probable version is that of the applicant.

0n 8 September 2004 the applicant and the first respondent signed the Addendum to Deed of Sale and a Deed of Sale at the offices of Attorney Sun. The attorney prepared the said documents after consulting with both applicant and first respondent.

At no stage did the first respondent advise the attorney that he was forced to sign the said documents nor that he is signing them under duress.

The attorney, in whose presence the documents were signed and who together with another attorney signed as witnesses, states that it was not apparent to him during the signing of the agreements that the first respondent was under any duress or was forced by the applicant to sign the agreements.

If the first respondent was signing under duress, one would have expected him to disclose that fact to Attorney Sun.

The Deed of Sale between the first respondent and the third respondent was signed by the parties on 9 March 2006.

Clause 18.2 thereof reads as follows:

"The Purchaser agrees to transfer the one hectare portion not included in the purchase price back to the Seller after proclamation of the Township known as Pomona Extention 42."

There is no reasonable explanation for the inclusion of the above quoted clause in the Deed of Sale. The only inference that can be drawn from its inclusion is that the first respondent was conscious about his obligation to transfer to the applicant the property in accordance with their agreement.

0n 5 April 2007 the applicant's attorneys wrote a letter to the first respondent demanding transfer of the piece of land, in accordance with the agreement, into the applicant's name.

In a letter dated 24 April 2007 the first respondent's attorneys replied to the letter from the applicant's attorneys. In the reply they simply stated the following:

"It is our instructions to inform you that our client is not the registered owner of the property any more. He is prepared to refund your client R50 000,00 deposit plus interest to your client."

It is interesting to note that the first respondent's attorneys in the said letter do not raise the question of duress and the first respondent being misled by the applicant to sign the agreement in Chinese language.

The probabilities are that if the first respondent was unlawfully pressurised by the applicant to sign the Deed of Sale and the Addendum to Deed of Sale, he would at least have mentioned it to Attorney Sun and to his attorneys. Attorney Sun would have not proceeded with the signing of the said documents and his attorneys would have alluded to that fact in their letter dated 24 April 2007 mentioned above.

I do not believe that first respondent mentioned the question of duress to his attorneys and they failed to raise the said fact in their letter mentioned above.

I find the version of the first respondent about the alleged duress inherently improbable and that the most probable version is the one put forward by the applicant.

The respondent's counsel further submitted that there are factual dispute and consequently the matter must be referred to oral evidence.

The said submission cannot be upheld. The evidence before court is such that the court can make a finding without the assistance of oral evidence. 0n the material issues, there is no genuine dispute of fact.

My view is that the applicant has made out a case and is entitled to an order in accordance with the notice of motion.

The respondent's counsel further submitted that the second respondent should not have been joined in the proceedings, and consequently the applicant's application against second respondent should be dismissed with costs.

Counsel further submitted that second respondent incurred costs after being joined as a party.

First respondent alleges that he is acting on behalf of second and third respondents. The respondents used same firm of attorneys and counsel.

I do not believe that the second respondent incurred any extra costs, even if maybe he had to consult with the attorneys and counsel. The said consultation would probably have occurred even if he was not joined because of his involvement with the first applicant and the interest he has in the third respondent. Third respondent also did not incur any costs.

There is no basis to grant costs order against the second and third respondents. Third respondent had to be joined in the proceedings as it is the registered owner of the entire piece of land which used to belong to the first respondent including the piece of land which is the subject of dispute between the parties.

I therefore make the following order:

1. Court grants an order in terms of prayers 1 and 2 of the notice of motion.

2. The first respondent is ordered to pay the costs of the applicant on a party and party scale.

W L SERITI

JUDGE OF THE HIGH COURT

22577-2007

HEARD ON: 18/10/2007

APPLICANT'S ATTORNEYS: GREYVENSTEIN AND GRUNDLING INC

APPLICANT'S COUNSEL: PUCKRIN SC

RESPONDENTS' ATTORNEYS: TIM DU TOIT ATTORNEYS

RESPONDENTS' COUNSEL: D VAN DEN BOGERT

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