It must be noted that the Shibambo family by mBKmZ2h

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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
                                       2


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
                                      3


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
                               4


      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 –



      (i)     the first respondent;

      (ii)    Magdelene Manosi, the applicant’s mother who has

              passed away;

      (iii)   Ruth, who the deceased divorced;

      (iv)    Esther, who the deceased divorced; and

      (v)     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
                                    5


             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 –



             (i)    R116 000 by way of set off;

             (ii)   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;
                                6


(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
                               7


       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
                               8


       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 –



       (i)    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;
                                9


       (ii)   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;
                              10


(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
                               11


                     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
                              12


       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
                                    13


             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
                                     14


      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 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
                                    15


      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
                               16


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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