Die Orffer Langdoed (Pty) Ltd v Orffer N.O and Others [2025] ZAWCHC 14
The applicant approached the Western Cape High Court for an order declaring a copy of a special power of attorney (SPA) to be declared an original for purposes of complying with the regulations under the Deeds Registry Act, 47 of 1937, in order to be able to transfer a portion of a farm to the purchaser thereof, alternatively to direct the 1st and 2nd respondents (the respondents) to sign and supply the applicant with a duplicate original of the SPA for this purpose. The respondents (in their capacity as trustees of the Bloubank Boerdery Trust (the trust)) in turn asked for a declaratory order that the trust is not bound by the SPA signed in December 2022, alternatively that the SPA has been revoked.
Due to financial difficulty, an investor was approached to supply capital for the survival of the applicant as a business in exchange for shares in the applicant. Prior to this the 1st respondent was the only shareholder in the applicant. Due to the Covid-19 pandemic and extreme weather the sustainability of the applicant was under continued stress and the trust owed the applicant eventually in excess of R17m. The SPA was then given by the trustees in December 2022 to the applicant to sell a portion of the farm, which the applicant succeeded in doing in May 2024. The original SPA was in the applicant’s possession, but was mislaid when the company moved offices. The respondents refused to supply the applicant with another original SPA because they disputed the applicant’s authority to sell the farm. The basis of this refusal is that a third trustee resigned prior to the signing of the SPA in December 2022, but that his resignation was not effective yet as the Master had not yet issued new letters of authority under section 6(1) of the Trust Property Control Act, 57 of 1988 (the TPCA) without the third trustee’s name. Therefore they argued that he was still a trustee and that the SPA was invalid because the third trustee did not sign it. It was common cause that the Master was notified of the resignation and acknowledged receipt of the notice prior to the signing of the SPA, but did not yet issue new letters of authority excluding the third trustee’s name. The respondents indicated that they had a better offer than the R12m for which the portion of the farm was sold by the applicant, acting under the SPA.
The court (Andrews AJ), in a fairly extensive judgement, considered the provisions of section 21 of the TPCA and the judgements in Soekoe NO and Others v Le Roux [2007] ZAFSHC 135 and Meijer NO v FirstRand Bank Limited [2012] ZAWCHC 23 and held that the provisions of section 21 do not override whatever provisions relating to resignation the trust deed may contain. The trust deed of the trust set out the procedure for the resignation of a trustee. The court also applied the doctrine of estoppel and held that the respondents cannot argue that the SPA is invalid as they themselves relied on it in eviction proceedings previously. The court held that, in this case, the approach followed by the court in the Meijer judgement is appropriate and that the Master’s acknowledgement of receipt of the notice of the third trustee’s resignation is the moment when the resignation became effective. Therefore, the SPA was validly signed by the two trustees in office at the time of signing. The court ordered that the SPA is an original and valid, that the applicant’s application is granted, and that the respondent’s counter application is dismissed with costs.