IN THE REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA JUDGMENT

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1 Page l l IN THE REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) (1) REPO RT ABLE: NO/YES (2) OF INTEREST TO OTHER JUDGES: NO/YES CASE NO: 48446/2014 (3) (4) TOj~YISED. ~~ CVIUOEN APPLICANT and DEON CORNELIUS SC CORNELIUS FIRM-0-SEAL CC REGISTRAR OF DEEDS, PRETORIA RGISTRAR OF DEEDS, NELSPRUIT 1 5 T RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT 5 TH RESPONDENT JUDGMENT KHUMALOJ [1] In this application, the Applicant, C Viljoen ("Viljoen"), seeks the following relief: [1.1] That the 4 th Respondent, alternatively the 5th Respondent be ordered to register a caveat against the 3 rd Respondent's immovable property situated at Portion 11 of the farm Buffelskloof, Buffelspruit, Middleburg, Registration Division 342 JS, Mpumalanga and known as u Bhejane-o-Africa Game Lodge ("referred to as

2 Page l 2 Portion 11") pending the finalisation of the action instituted by the Applicant against the 1st to 3rd Respondent. [1.2] That the 1st and 2nd Respondent be prohibited from alienating, encumbering or in any way dealing with their member's interest in the 3rd Respondent pending the finalisation of the action instituted by the Applicant against the 1st to the 3rd Respondents. [2] D Cornelius, the 1st Respondent, and SC Cornelius, the 2nd Respondent are husband and wife ("the Cornelius") and the sole members of Firm- o- Seal CC, the 3rd Respondent and in whose name Portion 11 is registered. [3] Viljoen has instituted an action against the 1st to 3rd Respondent (together referred to as "the Respondents") for compensation for damages she suffered as a result of a fall she sustained from a zip line situated at Portion 11. [4] The 4th and 5th Respondent are cited as interested parties. [5] The court has found in Viljoen's favour on the merits and the issue of quantum is still pendin g. Viljoen is claiming approximately a total amount of R in damages. The trial on quantum which was set down on 27 October 2017 was postponed to 11 March In the interim Viljoen enforced the order that was agreed upon by the parties that the Respondents pay her wasted costs occasioned by the postponement and within 30 days of the date of the order, pay her an interim amount of RSOO in liquidation of the damages amount which is to be finalised on trial. [6] It is common cause that the Respondents have paid Viljoen's wasted costs that includes the costs of two counsels and the interim amount of RSOO in full, the total of which exceeds Rl Million. To secure the payment of her damages when the order is granted, Viljoen seeks a caveat to be registered on Portion 11 and the Cornelius to be prohibited from transferring their member's interest in 3rd Respondent. Application [7] In the Applicant's Founding Affidavit deposed to by Viljoen's attorney, D A Venter, Venter alleges that the Respondents suffered to make the interim payment of RSOO as it was paid well after the date provided in the court order. Viljoen also had enormous problems to obtain payment of her costs for the trial on the merits, the applications for leave t o appeal and wasted costs for postponement of the trial, due to the evasive conduct of the Respondents, which he illustrates by referring t o the following incidents: [7.1] On 19 January 2015 a notice of a joinder of the 3rd Respondent was effected at its main place of business. The sheriff returned a return of non- service of a notice of intention to tax a bill, a judgment and a court order on the merits which the sheriff was instructed to serve on the Respondents at the same address on 10 July The writ was eventually satisfied on 20 July 2017 through the intervention of the Respondents' attorneys when the 1st Respondent pointed out certain movable goods for attachment. However after attachment the Respondents' attorneys laid a cla im to the attached goods on behalf of a third party.

3 Page 13 [7.2] On 20 July 2017 the 1st Respondent informed the sheriff that the 3rd Respondent has no movable assets and no longer exists, which was a lie as the CIPC extract shows that it is still in business. A further attempt to execute on 31 August 2017 resulted in a nu/la bona return being filed by the sheriff. [7.3] Viljoen's costs of the agreed postponement are in the process of taxation. Given the Respond ents' long delays with payment experienced in the past and the fact that they have no other assets (according to them), Venter suspects that eventually the Applicant will have to attach the 1st and 2nd Respondents' member's interest in the 3rd Respondent or the immovable property itself. [7.4] Venter has learned from the owner of a farm close by whose identity he prefers to not divulge that the immovable property of which the 3rd Respondent is the registered owner has been put up on the market for sale. Given the null bona returns this is the only redeemable asset that belongs to the Respondents, if sold Venter say he has no doubt the Respondents will immediately dissipate the selling price, and Viljoen will be unable to satisfy her claim in due course. [8] Accordingly he alleges that the only way to protect payment of the claim is to register a caveat against the immovable property which she will be able to attach and sell to satisfy the judgment that would be granted in her favour and prohibit the alienation and encumbering of the 1st and 2nd Respondent's interest in the 3rd Respondent. [9] Venter submits that having learnt of the proposed sale only on 5 February 2018, he informed Viljoen who instructed him to proceed with the matter on an urgent basis to protect her interests. He previously did not have an idea that the Respondents are in the process of selling the only available asset of the 3rd Respondent. Answering Affidavit [10] The Respondents in their answering affidavit deposed to by the 1st Respondent have in contention raised a point in fimine of /is pedens which I dealt with prior to hearing the matter on the merits and decided in favour of the Applicant as when the matter was heard only one matter was before the court, the Applicant having filed a Notice withdrawing his prior Notice of Motion. [11] On the merits the Respondents point out that the property was advertised for sale on the market on Face Book already in October 2017 and therefore the purpose of Venter's allegation that it was on 5 February 2018 is to create urgency in the matter. Venter could not establish if there has been any interest in the sale of the immovable property. (12] He denied that him or the 2nd Respondent have any intentions of transferring, alienating or encumbering their membership interest in the 3rd Respondent to evade execution of the judgment that might be obtained in March If they had such intentions they could have done it after the court found against them on the merits in October [13] They deny the allegations that only the sale of the farm of the 3rd Respondent will be able to save them from financial despair and allege that the quantum of the Applicant is in dispute and stands to be determined on the date of trial which they have a reason to

4 Page 14 suspect that the severity of her injuries is grossly exaggerated as they are in possession of the Applicant coaching a hockey team at a primary school, thus a lesser amount might be granted. [14] They allege that the quantum issue was previously enrolled on 15 August 2017 and on 28 August 2017, Applicant served an amended actuary report of Koch Consulting Actuaries on their current attorneys, amending the quantum of the Applicant's claim from Rl to R They allege the amendments are not in accordance with Rule 28 of the Uniform Rules of Court. [15] They deny that they suffered the payment of the interim amount. They allege that it was paid well before the date provided for in the court order, attaching proof indicating that the money was paid into their attorneys trust account on 22 November 2017, which according to them was a day earlier than agreed upon and thereafter by agreement between the parties paid over to the Applicant on the 4th day after the due date. According to court days that would be before the due date. They deem Venter's allegations to be unfounded and untrue. [16] On the writs that resulted on a nu/la bona return, the Respondents allege that the writs were issued without a demand made for payment of the amounts after taxation of Applicant's bills, placing them in an awkward position as they would have liked to make arrangements for the payment, hence 1st Respondent could not point the movable assets to the sheriff. [17] In respect of the non-service of the processes of the court on the Rand Street address in Middleburg, they allege that the place was sold in 2016 and 3rd Respondent has not conducted any business from that address. Venter and the Applicant were aware of the 1st and 2nd Respondent's residential address which at all times has remained the same and where the incident happened. Venter and the Applicant have once visited the residence therefore strange that the sheriff was sent to 3rd Respondent's former place of business. The Respondents had attorneys on record at the time and regard it as strange that Venter would not serve on the attorneys as well. They were aware of neither the writs or the taxed bill of costs. [18] They confirmed that the sheriff on 20 July 2017 requested payment of the R and was informed that there has not been a demand for the taxed bill of costs and therefore they were unable to make a payment immediately hence machineries to the value of Rl were pointed out to the sheriff who chose to only attach two machines that were worth about R The filing of an interpleader on behalf of a third party claiming to have a lien on the machines by their erstwhile attorneys of record, was without his knowledge or consent. He denies that Van Wyk held any lien on the machines. [19] The sheriff was also a~vised on 20 July 2017 that the 3rd Respondent was no longer in business but it still held all its movable assets and there and then pointing out the machinery to the sheriff, two of which were then attached. He denies that he said the business no longer existed. He also deny telling the sheriff on 30 August that the three Respondents did not have movable assets but admit that he did not cooperate with him when asked to point out movable assets as he did not consider it necessary as he intended

5 Page IS to pay the judgment debt in full which he did. He was also upset that no demand was yet again made. [20] He points out that they have nevertheless made payments in these proceedings totaling an amount of Rl They together as Respondents own unencumbered movable assets to the value of more than R that includes Game totalling R , Vehicles R , Furniture in the Lodge Rl , Engineering Machinery Rl The 3rd Respondent is alleged to be the registered owner of one more immovable property described as Portion 1 of the Farm Buffelskloof 342 JS, known as u Bhejan-o-Africa, a carnivore sanctuary, a lodge with chalets accommodating SO guests and a game farm, worth about R over and above Portion 11 which is known as Korongo, an open game farm worth about R [21] Cornelius also points out that the Applicant is indebted to him for costs from the judgment of 27 October 2016, the bill is in the process of being taxed. [22] The Respondents therefore deny that the Applicant might have to attach anything to satisfy a judgment that may be granted in her favour in There is also no basis to substantiate the averment that the Respondents will immediately dissipate the proceeds and that the Applicant will be unable to satisfy her claim in due course. The sale of the property was with the intention of investing the proceeds in Portion 1, u Bhejan-o-Africa. [23] They admit that they may sell their interest in the 3rd Respondent however deny that that is their intention. A mere possibility cannot be construed as a threat to any right of the Applicant. She has therefore failed to satisfy the requirements for an interdict to be granted against them. [24] The Respondents therefore allege that the Applicant is trying to secure payment for a debt that has not arisen yet. Whilst all her debts up to date have been paid in full and therefore is not entitled to the relief sought. Applicant's Reply [25] In reply Venter alleges that the costs of Applicant's aborted Application has been tendered. He submits that it should be noted that Respondents admit that the property has been advertised for sale and remains on sale. He alleges that the Respondents do not deny that there will remain no realizable assets if the property is sold nor do they tender that a sum equal to the balance of the Applicant's claim be kept in trust pending the finalisation of the Applicant's action. (26] He furthermore alleges that it is precisely for the reason that the quantum will only be determined on March 2019 which leaves Respondents ample time to alienate the farm and dissipate the money and it is important that they be prevented from getting rid of the only asset of any value owned by the 3rd Respondent. (27] In respect of failure to make a demand after taxation before resorting to issuing a writ, Venter replies that the Applicant was within his rights to obtain a writ of execution given the history of Respondents' failure to make timeous payments.

6 Page 16 [28] On serving at an old address he said the Respondents and their attorney did not inform him and the most natural thing to send sheriff to the last known address. The number of nu/la bona returns is indicative of the recalcitrance of the Respondents to pay what is due to Applicant. These past events speak for themselves and entitles the Applicant to have her claim against the Respondents protected. [29] The advertisement on Face Book is limited in extent. If he or Applicant had known of the advertisement earlier he could have brought the application earlier. Lega l framework [30] This is an application for a caveat that prevents the Respondent from freely dealing with his own property to which the Applicant lays no claim as an interim measure till the extent of her claim is determined. To succeed, not only is the Applicant required to establish and satisfy the well-established requirements for the grant of an interim interdict, that is: (a) that the right which she seeks to enforce is clear or, if not clear, is prima facie established, though open to some doubt; (b) if the right is only prima facie established there is a well-grounded apprehension of irreparable harm if t he interim relief is not granted; (c) that the balance of convenience favours the granting of interim relief; and (d) that t he applicant has no other satisfactory remedy. [31] In Knox D' Arey Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (A), 372F-I to which both parties have referred extensively in their arguments, the court went further to determine if it was necessary for an Applicant to also establish that the Respondent was, in fact, or likely to dissipate his or her assets, with an intention to defeat the applicant's claim to those assets. EM Grosskopf JA held that: 'The question which arises from this approach is whether an applicant need show a particular state of mind on the part of the respondent, ie that he is getting rid of the funds, or is likely to do so, with the intention of defeating the claims of creditors. Having regard to the purpose of this type of interdict, the answer must be, I consider, yes, except possibly in exceptional cases. As I have said, the effect of the interdict is to prevent the respo ndent from freely dealing with his own property to which the applicant lays no claim. Justice may require this restriction in cases where the respondent is shown to be acting ma/a fide with the intent of preventing execution in respect of the applicant's claim. However, there would not normally be any justification to compel a respondent to regulate his bona fide expenditure so as to retain funds in his patrimony for the payment of claims (particularly disputed ones) against him. I am not, of course, at the moment dealing with special situat ions which might arise, for instance, by contract or under the law of insolvency.'(my emphasis). [32] This is a necessa ry requirement in respect of the protection of the respondent's assets where the applicant fears that he will obtain a hollow judgment because by the time its granted, respondent's assets will have been dissipated. What the applicants have to establish is that, objectively considered, there are good grounds for fearing that the

7 Page J7 Respondent intends to make away with his assets in order to defeat the applicants' claims. (Yamamoto v Rand Canvas Co 1919 W.L.D. 100; Ncongwane v Molorane 1941 OPD 125). [33) The Applicant has a prima facie right as it is not in dispute that she has obtained judgement on the merits with only the extent of her damages to be determined. [34] It has been submitted that she has a well-grounded apprehension of irreparable harm and fear that the Respondents intend to dissipate their assets, due to the Applicant's incontrovertible past conduct of delaying payments, allowing returns of nulla bona on attempts to execute against their movables, 3rd party laying claim to their movable assets, lying about the operations of the 3rd Respondent and the existence of movable property, and finally the discovery that Respondents have put Portion 11 on the market. [35] On the other hand the Respondents argue that all monies due to the Applicant in excess of a Million have been paid, a fact not disputed by the Applicant. In respect of the writs Respondents argue that payment was made after the writs were issued because the Applicant did not bother to notify or serve them with the taxed bill or to make a demand of the taxed bill after taxation. At the time they did not point out any assets to the sheriff as they had the intention to make payments which they did. All was settled. [36] The Respondents seem to have a valid point although a writ is regarded as a form of a demand. Had he intended to pay he should have informed the sheriff. It however cannot be regarded as an act indicating an intention to dissipate the assets. Moreover cannot be regarded as an act of evasion of payment but perhaps an evasion of the process of attachment. [37] Regarding the part payment of the claim still to be determined, Respondent states that the money was paid into the trust account of their attorney of record on 22 November 2017 before the date it became due. The order was made on 27 October 2017 for payment within 30 days and the payment was made on 27 November as per agreed arrangement between the attorneys. It is therefore accepted by the court that the Respondents did not suffer any payment of the part payment as alleged by Applicant. [38] Furthermore on Applicant's indication that Respondents have lied to the sheriff advising him that the 3rd Respondent does not exist. Respondent says that he has only indicated to the sheriff that the business is no longer operating having sold its offices in 2016 and all its movable assets being held by the 1st Respondent. [39] However Applicant has attached, in substantiation of these allegations the sheriff's return on 30 August 2017 that constitutes prima facie evidence. The sheriff has stated in the return that the 1st Respondent informed him that all the movable property and furniture at Farm Buffelskloof belong to his parents, the vehicle he drives belong to UBhejane-o-Africa, the one driven by his wife to Wesbank and the wild animals were at the farm for rehabilitation and did not belong to them. In his affidavit he now alleges that there are movable assets worth Rl ,00 however there is already evidence that besides his assertion that his parents own the movable property a third party had also laid claim to 2 of the machines worth R The Applicant can therefore not rely on Respondents'

8 Page 18 assertion that there is movable assets owned by the Respondents from which her judgment may be realised. [40] The Applicant's allegation however that Portion 11 is the only property owned by 3rd Respondent has been disputed by the Respondents and an extract from the Deeds Office indicates that the 3rd Respondent is actually an owner of 2 properties attached to the Respondent's answering affidavit. Venter denies the 3rd Respondent's ownership of a 2nd property without tendering any further evidence to counter proof of such registration by the Deeds Office in 3rd Respondent's name. He proceeds to make an incomprehensible assertion that there will remain no realizable assets if the property, portion 11 is sold. He instead complains that the Respondent's failure to tender that a sum equal to the balance of the Applicant's claim be kept in trust pending the finalisation of the Applicant's action, when he has not called for or sought such a tender or relief from the Respondents. [41] It is therefore a fact that there is another property that is owned by the 3rd Respondent and the sale of Portion 11 will not result in the entire dissipation of the Respondent's assets. Respondents have indicated that their intention is not to dissipate but to invest the money into Portion 1. A property would then still be available for the Applicant to execute in respect of his claim. There is no legitimate evidence from which it can be inferred that the Respondent has any intention of dissipating the 2nd property as well. The property was put up for sale in October 2017 and during that time the Applicant was paid the money owed to her. t. [42] The Respondents are also not to be put out of business by the interdict in not allowing the Respondent to operate its business lucratively, as the intention is also not to harm the Respondent's business unnecessarily by interfering with the operations. In casu Respondents are to invest the property in another of the 3rd Respondent's properties to keep that property business running. [43] The Applicant has however indicated that the 1st Respondent has lied to the sheriff about the existence of the 3rd Respondent, its operations allegedly shut down and its other assets on 30 August Thereafter in October 2017 put up Portion 11 for an urgent sale, after leave to appeal refused. According to the Plaintiff this shows Respondents' intention to defeat the Applicant's claim or to render it hollow by apparently actually disposing of its assets. Indeed if the 3rd Respondent is supposedly not operating, its business allegedly shut down, offices closed and its holding of assets and onward existence in doubt, the Applicant's claim is at risks that it may not be satisfied as against the 3rd Respondent by the time the determination of its damages is finalised. The 1st and 2nd Respondent may sell their members' interest. It would be justifiable to make an order to prevent such a result. [44] The order that Applicant seeks in respect of Portion 11 is too wide as it will frustrate the Respondents in running their business and seeing that there is proof of a second property on which the judgment can be executed, placing a blanket caveat will frustrate the running of the farm, Portion 1 as well. (45] I have also been requested to consider the granting an order for costs to include the costs of two Counsels sin~e, I have been told that since the inception of this matter it has

9 Page 19 required or been attendant by two Counsel. I do not regard the intricacy of this Application to justify the employment of two Counsels. [46) Under the circumstances I make the following order: 1. A caveat to be registered against Portion 11 of the farm Bukkelskloof, Middleburg, Registration Division 342 JS, Mpumalanga, that pending the finalisation of the Applicant's action, the sale of the property will take place only with the consent of the Applicant unless the Respondents furnish the Applicant with a guarantee prior to transfer that from the proceeds of sale of the property an amount equal to the balance of the Applicant's claim is to be kept in the Applicant's Attorney's trust account pending the finalisation of the Applicant's damages claim. 2. The 1st and 2nd Respondent are prohibited from alienating, encumbering or in any way dealing with their member's interest in the 3rd Respondent pending the finalisation of the action instituted by the Applicant. 3. The 1st to 3rd Respondents, jointly and severally, to pay the costs of the application NV KHUMALOJ JUDGE OF THE HIGH COURT GAUTENG DIVISION: PRETORIA For the Applicant: Instructed by: T P Kruger SC and JHA Saunders D A Venter Ref: Venter / v10101 c/ o Marais Sasson Inc Tel: (012) For the Respondent: Instructed by: J J Greef Badernhost Attorneys C/ 0 Kemp, De Beer & Goosen Attorneys Ref: Badernhost/ W330 Tel: