In the matter between:

versus

And

versus

BOZALEK. J:

On 1 September 2008, by way of the semi-urgent roll, two applications came before me for temporary interdictory relief pending the outcome of actions still to be instituted for specific performance. The causes of action in both cases are very similar, namely agreements to purchase fixed property in a Sectional Title development alongside the Sreede River near Fort Beaufort.

The agreements were in each case concluded with Sevenstone Investments 118 (Pty) Limited, the respondent in the applications and the owner and developer of the properties.

In one case the applicants are the trustees of the Albert Lubbe Trust and the property in question is Section 65 in the Scheme, whilst in the other matter the applicant is Millprops 462 CC and the property is unit 64. The sections in question are now either completed or largely completed. The applicants purchased the properties in terms of written agreements of sale concluded in January and July 2006, one of the respondent's obligations in terms thereof being to build the residential units in question within a stipulated period.

In the case of Millprops, respondent contends that the 2006 agreement was discharged by the 2007 agreement and could not be revived. On different grounds however it contends that the 2007 agreement was invalid, thereby raising the somewhat curious  notion  of the  2007  agreement  being  valid for one purpose, but invalid for another.

In the case of both 2007 agreements respondent contends that a certain Mr Hebbert, a one time financial director of respondent who purported to sign and conclude these agreements on behalf of respondent, was not authorised to do so. However, this defence is not unequivocally or fully raised by respondent, which points out that its records are incomplete and that the present directors have no direct knowledge of these matters since they appear to have taken place before or around the time when they took control of the respondent company.

To compound matters, respondent explains, the previous sole director, Erasmus, has emigrated and contact with him has been minimal. To further complicate matters respondent introduced a company resolution purporting to give the necessary authority to Hebbert, but which appears not to tie up, date-wise, with the conclusion of the second agreement with Millprops. Respondent contended that for various reasons the resolution's authenticity was suspect. In reply the applicants produced an earlier, but identical, company resolution, which appears to resolve the question of timing but the applicants did not contextually explain from where this second resolution emanates.
In short, there are on these papers a number of serious questions regarding the ultimate validity of the agreements relied on, as well as both Erasmus's and Hebbert's authority to conclude such agreements on behalf of the respondent. Not only are there factual questions which cannot be answered on these papers but a number of potentially difficult legal questions are likewise raised but which cannot be dealt with in a factual vacuum. It seems clear that only the hearing of evidence will clear the path to the answers to these questions.

The respondent's submissions in this regard turn largely around what it argues is the unsatisfactory late raising and treatment by applicants of the authority of Hebbert to represent respondent, and, in particular, the lack of any explanation for the production, at a late stage furthermore, of the company resolutions allegedly evincing Hebbert's authority.

in these circumstances the applicants could not be faulted for initially relying solely on the written agreements and, although this is more arguable, only dealing with the question of Hebbert's authority in reply.

There remains the question of costs. Two possible cost orders suggest themselves. Firstly, in the light of the uncertainty concerning the merits of the applicant's actions the costs thereof, the cost of these proceedings, could be further reserved for determination in the actions or the arbitrations. Alternatively, costs should follow the result of these applications and be awarded at this stage. In choosing between these alternatives I take into account that the applicants had (ittle alternative, given the respondent's steps to re-market the properties and its refusal to give any undertakings not to dispose of the properties pending the outcome of actions, but to institute the two interdict applications. They have moreover, ie the applicants, been substantially successful in these applications.

In the circumstances I have come to the conclusion that it would be appropriate and equitable to grant applicants their costs to date.

In the result the following order is made in case number 3987/2008;

The respondent is interdicted and restrained form alienating Section 65.

3.	The action shall be instituted within 15 (fifteen) court days of applicant exercising its choice in terms of paragraph 2 above.
4.	The respondent shall pay the costs of this application.

A similar order is made in case 3983/2008, with the appropriate changes to cater for the different circumstances. These orders are available from my registrar.