IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

(1)

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Case no:

(ex SCA) 196/14) (ex PE 819/12)

In the matter between:

VIRGINIA SARRAHWITZ Applicant

and

HERMANUS MARITZ N.O. Respondent

RESPONDENT’S ANSWERING AFFIDAVIT

I, the undersigned,

HERMANUS MARITZ

do hereby make Oath and state:

(2)

INTRODUCTION:

1. I am the Respondent in this matter and I am the duly appointed trustee in the insolvent estate of one Reynier Posthumus (hereinafter referred to as “the insolvent estate” or “the insolvent” depending on the context), who was sequestrated in the High Court, Port Elizabeth on 18 April 2006.

2. The facts herein contained are true and correct and are, unless otherwise stated or it otherwise appears from the context, within my personal knowledge.

3. I am duly authorised to oppose this application on behalf of the creditors of the insolvent estate.

CONDONATION:

4. This matter has been dragging on since 2006, largely due to the various court actions and application launched by and against the Applicant (which are dealt with in my answering affidavit in the main application: see para four, pages 88 to 91 of the Applicant’s founding affidavit) as a result of which the estate has still not been finalised.

(3)

5. Despite the modest size of the insolvent estate the matter was (and still is) a complex one and it has required a substantial amount of work out of relation to the size of the estate. This has put a severe strain on the finances available to administer the estate, which has been exacerbated by this on- going litigation.

6. In the circumstances, when the application to the Constitutional Court was delivered the creditors, in particular the major creditor the Receiver of Revenue, were reluctant to commit more money to the matter.

7. The fact that the Applicant is, on her own admission, impecunious and there are obviously no prospects of recovering costs from her increased the creditors’ reluctance.

8. However, as the property concerned is one of the major assets in the insolvent estate the creditors finally agreed to give me the go-ahead to oppose the application.

9. I would accordingly pray for condonation for the late filing of the Respondent’s opposing affidavit.

MERITS:

10. I deny that the Applicant has made out a case for the relief claimed in the Notice of Motion and deal with the founding affidavit hereinbelow.

(4)

11. In order to understand the background to this matter I refer this Honourable Court to my opposing affidavit in the application in the court a quo, the contents of which are pray be read as forming part of this affidavit. (In this regard, see pages 87 to 104 of the Applicant’s founding affidavit).

12. Ad Paragraphs 1 and 2:

I admit the allegations herein contained.

13. Ad Paragraph 3:

I deny that all the alleged facts set out in the Applicant’s affidavit are true and correct.

14. Ad Paragraph 4:

I note the allegations herein contained. Unfortunately for the Applicant this is not the basis upon which the application was brought and argued in the first place. To introduce a completely new cause of action at this stage would, it is respectfully submitted, be highly irregular and grossly prejudicial.

15. Ad Paragraph 5:

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16.1 I cannot see any reason for the involvement of the Minister of Trade and Industry. This matter concerns the fate of an immovable property on the insolvency of the seller thereof, when such insolvency occurred prior to the transfer of the said property;

16.2 The provisions of the Alienation of Land Act, particularly sections 21 and 22 thereof, are irrelevant, a fact which the Applicant now belatedly acknowledges.

17. Ad Paragraphs 8, 9 and 10:

I note the allegations herein contained.

18. Ad Paragraphs 11 to 35:

18.1 I have no knowledge of the majority of these allegations and accordingly cannot admit them. In any event, these allegations should have formed part of the original application. The Applicant has given no acceptable explanation as to why she did not disclose these allegations in the first place. She must have had her founding affidavit;

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18.2 The central issue is contained in paragraph 12 of the founding affidavit, in which the Applicant states that she paid the purchase price to the insolvent prior to transfer. Had she not done this they would have been no dispute.

19. Ad Paragraph 36 and 37:

20. Ad Paragraph 38:

An order for the eviction of the Applicant was brought and was in fact granted. That order stands.

22. Ad Paragraph 43 to 49:

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23.1 The Applicant entered into a written deed of sale for the purchase of the property and paid for it years prior to the insolvent’s sequestration;

23.2 For reasons which are not relevant, and through no fault of the insolvent (or me in my capacity as executor of the insolvent’s estate) transfer did not take place prior to the sequestration;

23.3 It is trite law that transfer of ownership of immovable property only passes on registration thereof in the Deeds Office. This trite legal proposition has not been challenged by the Applicant.

I have no knowledge of these allegations and do not admit them. It is respectfully submitted that there are in any event irrelevant to the issues at hand.

25.1 As I understand it the legislature made specific provision for land sold by way of instalments because by the very nature of the transaction transfer is delayed;

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25.2 However, where immovable property is sold in the ordinary course payment would normally take place simultaneously with transfer. If a purchaser elects to pay prior to transfer it is respectfully submitted that the purchaser does so at his/her own risk.

27.1 It is correct that Goosen J did not deem it necessary to deal with the prescription issue;

27.2 I deny that the Applicant’s case is not based on a “debt” and in this regard refer to the decision of Desai N.O. v Desai & Others 1996 (1) SA 141 (AD), which has been followed by a long line of cases;

27.3 That more than three years has elapsed between the debt arising and the launching of the application in the court are quo is clear from the papers. Thus, even if the Applicant’s belated new cause of action has merit, the cause of action has prescribed.

(9)

I deny the allegations herein contained.

30.1 I deny that the same situation (as with the sale of land by instalments) prevails in respect of the sale of land in the ordinary course;

30.2 In the first place, the sale of land is no different to any other contract and it is subject to the same principles, subject to certain formal statutory requirements. Thus, there is no difference between the sale of a car and the sale of land. If ownership has not passed the asset falls into the insolvent’s estate;

30.3 In the second place, payment should have taken place simultaneously with transfer and a purchaser who agrees to pay the purchase price prior thereto must bear the risk.

(10)

I note the contents hereof, but deny that section 25 of the Constitution is application to the present matter.

I deny that another court will come to a different conclusion.

I deny the allegations herein contained.

That the Applicant now believes that her case was not correctly pleaded in the first place is an issue between her and her erstwhile legal representative.

(11)

It is respectfully submitted that it is not open to the Applicant, at this extremely late stage, to completely change the basis upon which the application was launched in the first place.

I deny that the Applicant has made out a case for the relief claimed in the Notice of Motion, either the main relief, or the alternative relief, and pray that the application be dismissed with costs.

HERMANUS MARITZ

SIGNED and SWORN before me at PORT ELIZABETH on this the day of AUGUST 2014, by the Deponent who acknowledges that he/she knows and understand the contents of this Affidavit and that he/she has no objection to taking the prescribed oath and that he/she considers same binding on his/her conscience.

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