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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 34949/2013

Reportable: No

Of interest to other Judges: No

Date: 27/07/2017

In the matter between:

ROCKRIDGE GAME FARM (PTY) LTD                                                                Applicant

and

JOHANNES BREEDT                                                                              First Respondent

IHLENFELDT ATTORNEYS & CONVEYANCERS                             Second Respondent

IHLENFELDT , NAUDENE                                                                      Third Respondent

THE REGISTRAR OF DEEDS                                                              Fourth Respondent

JUDGMENT

KUBUSHI J

[1] The applicant before me seeks an order declaring three mortgage bonds registered in favour of the first respondent over certain three separate properties (the properties are disputed by the applicant and the first respondent), to be null and void and directing and compelling the first respondent (or the Sheriff in his stead) to sign whatever document may be required to be signed and to do whatsoever may be necessary to effect cancellation of the mortgage bonds over the properties.

[2] The applicant's claim is based on the allegation that it is the owner of the three properties. The evidence proffered by the applicant in its papers is that the properties in question were initially owned by a close corporation Vendcorp 145 CC (“Vendcorp”) with the first respondent as the sole member thereof.  On 8 April 2003 an agreement was entered into between a company known as Smilin' Thru Chalets (Pty) Ltd ("Smilin' Thru") and the first respondent in terms of which Smilin' Thru took over Vendcorp from the first respondent for a consideration of R1 167 200. The said amount was payable to the first respondent partly in shares and partly in cash. In order to give effect to the transaction, Vendcorp was converted from a close corporation to a private company so as to enable the first respondent to transfer the shares to Smilin' Thru. On 15 July 2015 Vendcorp became a private company by conversion in terms of the provisions of the Companies Act No. 61 of 1973. The company became known as Vendcorp 145 (Pty) Ltd ("Vendcorp145"). Thereafter Smilin' Thru purchased all of the first respondent's shares as well as the first respondent's loan account in Vendcorp 145. On 19 April 2004 Vendcorp 145 changed its name to Ridge Rock Game Farm (Pty) Ltd ("the applicant"). As a result of this transaction, the applicant became the owner of the three properties. The applicant's sole shareholder is said to be Smilin' Thru and there are two directors. The first respondent is neither a shareholder nor one of the directors of the applicant. The applicant's further testimony is that during or about January 2012 the first respondent caused the mortgage bonds to be registered over the three properties in circumstances where he is neither a shareholder nor director of the applicant; the applicant owes no debt to the first respondent; neither the first respondent nor any other person was duly authorised by the applicant to sign the mortgage bonds and/or power  of  authority  to  register  the  mortgage  bonds;  and  the  applicant  did not authorise the registration of the mortgage bonds over the property, hence the application.

[3] Before me, only the first respondent is opposing the application, there is no substantive relief sought against the other respondents, namely, the second to fourth respondents, and they are cited in the papers simply as they may have an interest in the relief sought by the applicant. The second and third respondents have filed a notice to abide the decision of the court.

[4] The first respondent is opposing the application and has simultaneously instituted a counter application for an order declaring him the lawful owner of the issued shareholding in the applicant.

[5] The first respondent's contention is that to the extent that Vendcorp was converted to Vendcorp 145 such conversion and name change of Vendcorp 145 to the applicant took place without his knowledge and consent and without any authority from him. According to him, Vendcorp is his exclusively, and he is its sole

member  and/or  shareholde.r   He never  approved the transfer  of  his  shares in or

rights in Vendcorp to either the applicant, Smilin' Thru or anyone else and the applicant is by subterfuge and fraudulent acts, attempting to dispossess him of the properties. His version of events as contained in his answering affidavit is that he got acquainted with the owners of Smilin' Thru (who are from Malaysia) when he assisted them to purchase and develop several adjacent immovable properties near Vaal River. At that time he already owned the properties which are the subject matter of this dispute. Importantly such properties are adjacent to the immovable properties purchased by Smilin' Thru. He became involved in some of the business affairs of Smilin' Thru when he was asked to act as the South African director and chairman to manage the affairs of Smilin' Thru during the absence of the owners. The owners of Smilin' Thru later expressed an interest to make the three properties owned by Vendcorp part of their development. Negotiations between him and the owners of  Smilin'  Thru ensued and  culminated  in a  verbal  agreement  in terms whereof the first respondent would, subject to certain conditions, sell and transfer his interest in Vendcorp to Smilin' Thru but the conditions were never fulfilled and the agreement did, as such, not come into fruition. As a result he was never obliged to transfer any member's interest in Vendcorp to Smilin' Thru.

[6] The applicant relies in its case on the sale transaction which is denied by the first respondent.   Initially, the issue was whether the sale transaction, and  in   the

terms contended  for  by  the  applicant,   took place. However, when  the  matter

appeared before me the contended issue for determination was whether the first respondent signed (therefore knew and approved of) the various documentation effecting the conversion of the close corporation (Vendcorp) to a company (Vendcorp 145) and the transfer of his shareholding in that company to Smilin' Thru. The first respondent, in his answering affidavit to the application, denied signing such documentation and asserted that his signature on the said documents was deliberately contrived; and, in that sense, placed his signature on the two documents in dispute.

[7] On the basis of this challenge, and after filing its answering affidavit to the first respondent's counter application, the applicant instructed a handwriitng expert, Brigadier JF Hattingh, to analyse the signatures purported to be those of the first respondent on the two contested documents and compare them to the first respondent's signatures on the answering affidavit [in reply to the applicant's founding affidavit] and the agreement filed as an annexure thereto. In the opinion of the handwriting expert, the disputed signatures were most probably of the same person who signed the specimen. The expert's opinion was tendered into evidence by means of a supplementary affidavit filed by the applicant almost twelve months after the applicant had filed its answering affidavit to the first respondent's counter application. The first respondent in his replying affidavit is contesting the admissibility of the evidence of the applicant's handwriting expert on the ground that the supplementary affidavit should be disregarded by the court as pro non scripto. As a result, when the parties appeared before me the issue of whether the supplementary affidavit filed by the applicant ought to be disregarded as pro non scripto or not, loomed large and required determination before the main issues could be resolved.

THE PRELIMINARY ISSUE

[8] The chronology of the pleadings in this regard is that the applicant's founding affidavit was filed on 11 June 2013. The first respondent filed and served his answering affidavit accompanied by a counter application on 30 August 2013. On 10 December 2014 the applicant filed a replying affidavit to the first respondent's answering affidavit accompanied by an answering affidavit to the counter application. This was followed almost a year later, that is, on 3 December 2015, by the supplementary affidavit which sought to introduce the handwriting expert's opinion referred to in the applicant's answering affidavit to the counter application. Another year later, on 7 December 2016, the first respondent filed a replying affidavit to the applicant's answering affidavit of 3 December 2015.

[9] The first respondent, in this replying affidavit did not deal with the handwriting expert’s evidence as contained in the applicant's supplementary affidavit. He instead challenged the supplementary affidavit on the ground that it should be regarded as pro non scripto because it was not properly   before court. His submission is that leave of court has neither been sought nor granted to supplement the answering affidavit with the expert's opinion. There was also no agreement reached by the parties allowing the introduction of the evidence in the supplementary affidavit. In addition, so it is argued, the applicant must show exceptional circumstances in order for the court to allow the supplementary affidavit.

[10] In support of his submission the applicant's counsel relied on the following judgments: James Brown & Hamer (Pty) Ltd v Simmons, NO[1]  where the following is said-

"Where, as in the present case, an affidavit is tendered in motion proceedings both late and out of its ordinary sequence, the party tendering it is seeking not a right, but an indulgence from the court; he must both advance his explanation of why the affidavit is out of time and satisfy the court that, although the affidavit is late, it should, having regard to all the circumstances  of the case, nevertheless be received".

Standard Bank of SA Ltd v Sewpersadh & Another[2]   it was held that -

"[13] Clearly a litigant who wished to file a further affidavit must make formal application for leave to do so. It cannot simply slip the affidavit into the court file (as it appears to have been the case in the instant matter). I am of the firm view that this affidavit falls to be regarded as pro non scripto."

Sealed Africa (Pty) Ltd v Kelly & Another[3] the following is that -

"[4] The filing of further affidavits after the replying affidavit has been filed is a matter for  the discretion of the court. In the absence of leave being granted by the court for the filing of such affidavits,  parties  are  not entitled to  simply,  by their  own arrangement file as many affidavits as they wish."[4]

[11] The essence of the applicant's argument, on the contrary, is that a distinction should be drawn between matters where a further affidavit is sought to be filed outside of the normal three sets of affidavits and where a further affidavit (like in this instance) is filed before the evidence has been closed, that is, before all three sets of affidavits were filed. It is contended that in casu since the supplementary affidavit followed before the first respondent filed his replying affidavit, the supplementary affidavit did not constitute a fresh affidavit and should as such not be rejected. It was further submitted by the applicant's counsel that the cases relied on by the first respondent for the proposition that the supplementary affidavit is pro non scripto are in respect of affidavits filed out of the normal sets of affidavits after the other party has already filed and are distinguishable from the matter before me. According to counsel it was not necessary for the applicant to apply and to furnish exceptional circumstances to the court as this only applies in circumstances where the fourth set of affidavits is sought to be filed.  The test for exceptional circumstances is used where a case is reopened and after the respondent has filed his answering affidavit, but this is not such a case. In, this instance, the applicant had not yet closed its case and was entitled to add more evidence if it so required, so it was argued.

[12] There are normally three sets of affidavits in motion proceedings[5].The court exercises its discretion in permitting the filing of further affidavits against the backdrop of the fundamental consideration that a matter should be adjudicated upon all  the  facts  relevant  to  the  issues  in  dispute.  But,  a  party  cannot  take  it  upon herself/himself to simply file further affidavits without having obtained the leave of the court to do so. It has been held that where further affidavits are filed without leave of the court, the court can regard such affidavits as pro non scripto. While the general rules regarding the number of sets and proper sequence of affidavits should  ordinarily be observed, some flexibility must necessarily  also be permitted. It is only  in exceptional circumstances that a fourth set of affidavits will be received. Special circumstances  may exist where something  unexpected  or new emerged  from the

applicant’s replying affidavit[6].

[13] In this instance, it is quite clear that the applicant has not applied for permission to file the supplementary affidavit. The applicant’s submission in this regard is that it was not necessary for it to apply for such permission because the supplementary affidavit in question is not a fourth set of affidavits. The supplementary affidavit, according to the applicant, was filed before the first respondent replied to its (the applicant’s) answering affidavit and, as such, its case was still open and it could thus add to its evidence.

[14] The question, therefore, is whether the supplementary affidavit in issue in this instance is a further affidavit as contemplated in Uniform Rule 6 (5). I do not think that the question should be whether the contended supplementary affidavit is a fourth set of affidavits since it is quite clear that the first respondent had not filed his replying affidavit at the time the supplementary affidavit was filed. What requires to be determined is whether it is a further affidavit and if so whether the consent of the court should have been obtained before the filing thereof.

[15] Uniform Rule 6 (5) deals with the filing of affidavits in application proceedings. The rule provides as follows:

'6              Applications (rules of the court)

(1) Save where proceedings by way of petition are prescribed by law, every application shall be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief.

(2)....

(5) (d)        Any person opposing the grant of  an  order  sought  in the notice of motion shall­

(i) ....

(ii)  within fifteen days of notifying the applicant of his intention to oppose the application, deliver his answering affidavit, if any, together with any relevant documents; and

(iii)  ....

(e) Within 10 days of the service upon him of the affidavit and documents referred to in subparagraph  (ii)  of  paragraph  (d)  of subrule (5) the applicant may deliver a replying  affidavit.  The  court may  in  its  discretion permit the filing  of further affidavits.'

[16] The rule was succinctly explained in the Supreme Court of Appeal judgment in Hano Trading CC v J R 209 Investments (Pty) Ltd[7] as follows:

"[10]     A litigant in civil proceedings has the option of approaching a court for

relief on application as opposed to an action. Should a litigant decide to proceed by way of application, rule 6 of the Uniform Rules of Court applies. This rule sets out the sequence and timing for the filing of the affidavits by the respective parties. An advantage inherent to application proceedings, even if opposed, is that it can lead to a speedy and efficient adjudication and resolution of the disputes between    parties. Unlike actions, in application proceedings the affidavits take the place not only of the pleadings, but also of the essential evidence which would be led at a trial. It is accepted that the affidavits are limited to three sets. It follows thus that great care must be taken to fully set out the case of a party on whose behalf an affidavit is filed. It is therefore not surprising that the rule 6(5)(e) provides that further affidavits may only be allowed at the discretion of the court.

[11] Rule 6(5 )(e) establishes clearly that the filing of further affidavits is only

permitted with the indulgence of the court. A court, as arbiter, has the sole discretion whether to allow the affidavits or not. A court will only exercise its discretion in this regard where there is good reason for doing so.

[12] This court stated in James Brown & Hamer (Pty) Ltd ( previously named Gilbert Hamer & Co Ltd) v Simmons NO 1963 (4) SA 656 (A) at 660D-H, that:

'It is in the interests of the administration of justice that the well-known  and well established general rules regarding the number of sets and the proper sequence of affidavits in motion proceedings should ordinarily be observed. That is not to say that those general rules must always be rigidly applied: some flexibility, controlled by the presiding Judge exercising his discretion in relation to the facts of the case before him, must necessarily also be permitted. Where, as in the present case, an affidavit is tendered in motion proceedings both late and out of

its  ordinary  sequence,  the party  tendering it  is  seeking, not a right, but   an

indulgence from the Court: he must both advance his explanation of why the

affidavit is out of time and satisfy the

Court that, although the affidavit is late, it should, having regard to all the circumstances of the case, nevertheless be received. Attempted definition of the ambit of a discretion is neither easy

nor desirable. In any event, I do not find it necessary to enter upon any  recital

or evaluation of the various considerations which have guided Provincial Courts in exercising a discretion to

admit or reject a late tendered affidavit (see e.g. authorities collated in   Zarug

v Parvathie, 1962 (3) SA 872 (N)). It is sufficient for the purposes of this appeal to say that, on any approach to the problem, the adequacy or otherwise of the explanation for the late tendering of the affidavit will always be an important factor in the enquiry.'

[13] It  was then later  stated by  Dlodlo J  in  Standard  Bank  of  SA Ltd v  Sewpersadh  &

another2005 (4) SA 148 (C) at paras 12-13:

'The applicant is simply not allowed in law to take it upon himself and (to) file an additional affidavit and put same on record without even serving the other party with the said affidavit. ..

Clearly a litigant who wished to file a further affidavit must make formal application for leave to do so. It cannot simply slip the affidavit into the Court file (as it appears to have been the case

in the instant matter). I am of the firm view that this affidavit falls to be regarded as pro non scripto.'

[17] From this judgment is quite clear that the uniform rules allows for only three sets of affidavits and that is the founding affidavit, the answering affidavit (opposing affidavit) and the replying affidavit. Any other affidavit besides these three is a further affidavit. As a result any party who requires to file a further affidavit must first obtain the consent of the court to do so. Where such consent was not granted the affidavit so filed is pro non scripto.

[18] The supplementary affidavit is said to have been filed to augment the evidence in the answering affidavit and did not seek to introduce a new point as evidence in the answering affidavit. This is not what is said in the Hano Trading­ judgment. Uniform rule 6 (5) sets out the sequence and timing for the filing of the affidavits by the respective parties. Once it is accepted that the affidavits are limited to three sets, it follows that great care must be taken to fully set out the case of a party on whose behalf an affidavit is filed. Where a party seeks to augment the evidence in a filed affidavit she or he must first be granted leave to file an affidavit supplementing such evidence by the court.

[19] I agree with the applicant that its case is different from the judgments the first respondent is relying upon. In those judgments, the three normal sets of affidavits were filed and it was required to file the fourth set of affidavits over and above the normal sets. In this instance, the replying affidavit was not filed at the time the supplementary affidavit was filed. However, the principle enunciated in those judgments that the filing of further affidavits should be filed only with the consent of the court, remains applicable even in the circumstances of this instance.

[20] The applicant did not apply for leave to file the supplementary affidavit. I rule, therefore, that the supplementary affidavit and consequently the evidence of the handwriting expert to be inadmissible.

MERITS

[21] Having disallowed the filing of the supplementary affidavit and the potential evidence contained therein, I now turn to the merits. I find the first respondent's argument on the merits that the matter be referred to trial because of the existing material factual disputes, to be sound.

[22] It is a doctrine of our courts that conflicting affidavits are not suitable means  for determining disputes of fact. Judges have been warned not to allow a respondent to raise fictitious disputes of fact to delay the hearing of the matter or to deny the applicant its order. There has to be a bona fide dispute of fact on a material matter. This means that an uncreditworthy denial, or a palpably implausible version, can be rejected out of hand, without recourse to oral evidence.  In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd,[8] the court extended the ambit of uncreditworthy denials to encompass not merely those that fail to raise a real, genuine or bona fide dispute  of fact,  but  also  allegations  or denials  that  are so far-fetched  or    clearly

untenable that the court is justified in rejecting them merely on the papers.[9]  In my

view, this instance is one of those matters where there are material disputes of facts incapable of resolution on the papers before me. The matter ought to be referred to trial.

[23] In terms of Uniform rule 6 (5) (g) a court may, where an application cannot properly be decided on affidavit, refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise.

[24] For me, the issue of whether the first respondent signed the conversion documents when Vendcorp was converted into Vendcorp 145 and the security transfer forms signed when the shares from Vendcorp 145 were transferred to Smilin' Thru is decisive of the matter. Should it be found that the contended signatures are indeed those of the first respondent, it goes without saying that the first respondent knew that the close corporation was converted and that shares were transferred to the applicant. This, therefore, is the issue that requires determination at the trial.

[25] In the premise I grant the following order:

1.            The supplementary affidavit is pro non scripto.

2.            The matter is referred to trial.

3.            The affidavits filed and to be filed, are to stand as pleadings and the Uniform Rules of Court pertaining to pleadings and the conduct of trials are to apply.

4.            The issue for determination at the trial should be whether or not the signatures on the conversion documents when Vendcorp CC was converted to Vendcorp 145 (Pty) Ltd and the transfer forms  signed when the shares from Vendcorp 145 (Pty) Ltd were  transferred  to Smilin'  Thru Chalets (Pty) Ltd, are those of the first respondent.

5.            Costs are to be determined at the trial.

_________________

E. M. KUBUSHI

JUDGE OF THE HIGH COURT

Appearance:

Date of hearing                                 : 12 June 2017

Date of judgment                              : 27 July 2017

Applicant's Counsel                         : Adv. C. J. Bresler

Applicant's Attorneys                       : E Y Stuart

Instructed by                                     : Werkmans Attorneys

Respondent's                                    : Adv. A. Roeloffze

Counsel Respondent's Attorneys   : lhlenfeldt Attorneys

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