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[2016] ZAWCHC 115
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Coetzee v Cotzee (18681/2015) [2016] ZAWCHC 115; [2016] 4 All SA 404 (WCC) (8 September 2016)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case number: 18681/2015
DATE: 8 SEPTEMBER 2016
In the matters between:
JOHANNES
DANIËL
COETZEE
..........................................................................................
Appellant
And
HUGO JOHANNES
COETZEE
..........................................................................................
Respondent
JUDGMENT
Before: The Hon. Ms Justice Allie
The Hon. Mr Justice Saldanha
The Hon. Mr Justice Binns-Ward
Hearing: 25 July 2016
Judgment delivered: 8 September
2016
BINNS-WARD J (ALLIE and SALDANHA JJ concurring):
[1]
The defendant in the court a quo has come
on appeal against the judgment of the trial judge in an action
brought by the plaintiff
for the termination of the parties’
joint ownership of the farm, B… No. 1…., situate near
V…..in the
Municipality of P….. Leave to appeal
was granted by the trial judge. It is convenient to refer to
the parties
as at first instance.
[2]
The parties are related to each other.
The plaintiff is the defendant’s nephew. The farm has
been in the family
for generations (since 1852). There is a family
cemetery on the property. The plaintiff currently owns a 90 per
cent undivided
share in the property and the defendant owns the
remaining 10 per cent.
[3]
The plaintiff purchased his share from his
parents in about 2002. He grew up living on the property.
After acquiring
his proprietary interest, the plaintiff has effected
significant improvements to the homestead - in which he lives with
his wife
and children - and to a number of the outbuildings. It
appears that the property was in a very rundown state when he
purchased
his interest in it. Although the plaintiff’s
principal source of income is derived from a fish meal business that
he
carries on in V……, he does use the farm commercially
when he fattens cattle purchased to be put out to graze on the
land
during the winter months when the veld in that area is verdant.
He also uses a building on the property for the purpose
of a business
that repairs canvas bags. His wife uses another building for
her meat processing business.
[4]
The defendant inherited his share from his
parents, who were the plaintiff’s grandparents, in 1966.
He also grew up
on the farm and has maintained a close connection
with it throughout his life. He has lived in a house on the
property, which
is now his principal place of residence, since 1998.
The defendant had to undertake extensive restoration work to the
house
in which he lives in order to make it habitable. His
evidence that he had expended in the order of R400 000 on the
restorations
was not contested. He maintains a flower and
vegetable garden near the house and there is some suggestion in the
evidence
that he might be able to generate a small income by growing
plants for horticultural purposes.
[5]
The plaintiff claimed an order in the
following terms:
A.1
‘n Bevel dat die partye se mede-eienaarskap van die restant van
die plaas B.... nr. 1..., in die Munisipaliteit B.........,
A........
P......, Provinsie van die Wes-Kaap, groot 1.....,7....... hektaar,
ontbind word;
[1]
A.2
Dat die Verweerder gelas word om alles te doen wat nodig is om die
oordrag van sy een-tiende aandeel in die eiendom beskryf
as die
restant van die plaas Bovenplaat nr. 1....., in die Munisipaliteit
B....., A...... P......, Provinsie van die Wes-Kaap,
groot
1........,7..... hektaar aan die Eiser te bewerkstellig teen betaling
deur die Eiser van die bedrag van R233.260,00 of sodanige
ander
bedrag as waarop die partye skriftelik mag ooreenkom;
[2]
B
Alternatiewelik to A.2 hierbo, dat die partye meewerk om binne 10 dae
ná datum van hierdie bevel opdrag te gee aan ‘n
afslaer
om binne 30 dae daarná en ná minstens 10 dae
kennisgewing deur die afslaer per advertensie in een Engelstalige
en
een Afrikaanstalige dagblad wat in die omgewing van die gemelde
eiendom sirkuleer die gehele voormelde eiendom te verkoop aan
die
hoogste bieër per openbare veiling gehou op die gemelde
eiendom;
[3]
C
Dat nege-tiendes en een-tiende van die opbrengs van die verkoping ná
aftrekking van afslaerskommissie, advertensiekoste
en ander koste
redelikerwys noodsaaklik aangegaan om die verkoping te bewerkstellig
aan onderskeidelik die Eiser en die Verweerder
uitbetaal word by
registrasie van oordrag van die eiendom in die naam van die koper;
[4]
D
Indien enige party sou versuim om uitvoering te gee aan enige van die
voormelde bevele, dan word die Balju gemagtig en gelas om
in die plek
van sodanige party te tree en alles te doen wat nodig is om
uitvoering aan die voormelde bevele (na gelang van die
geval) te
gee;
[5]
D
Dat die Verweerder gelas word om die Eiser se gedingskoste te betaal,
gemelde koste in te sluit die kwallifiserende- en voorbereidingsfooie
en uitgawes van die eiser se deskundiges van wie opsommings of
verslae geliasseer is.
[6]
The defendant, on the other hand, contended that the property should
be partitioned by means of a subdivision that would permit
him to
obtain exclusive ownership of the cottage in which he resides with
his partner or long term companion and an area of the
surrounding
land.
[6]
It
is common ground that any subdivision of the property would be
subject to the Subdivision of Agricultural Land Act 70 of 1970
(‘the
Subdivision Act’) and therefore could occur only with the
previously obtained consent of the national Minister
of Agriculture.
[7]
Approval for any physical partitioning of
the land would also need to be obtained from the local authority in
terms of the applicable
planning legislation. The plaintiff
contended that, absent evidence that the Minister would approve a
subdivision of the
farm, the Subdivision Act constituted an obstacle
to the court’s ability to make an effective order for the
partitioning
of the property. To the extent that the judgment
of Baker J in
Van Der Bijl and Others v
Louw and Another
1974 (2) SA 493
(C),
which was relied on by the defendant, held otherwise, the plaintiff
argued that that case was distinguishable by virtue of
a subsequent
amendment to s 4 of the Subdivision Act. Section 4(1) of
the Act, which was substituted by s 2 of
Act 18 of 1981,
requires an application for ministerial consent to be submitted by
the ‘owner’, which in the case of
co-owners denotes all
of them acting jointly.
[8]
At the time that
Van
Der Bijl
was decided s 4(1) did
not expressly require an application for ministerial consent to be
submitted by the owner.
[7]
There was also a claim in reconvention by
the defendant for an accounting by the plaintiff. By agreement
between the parties,
a ruling was made in terms of rule 33(4) that
the claim for an accounting should be tried separately after the
basis upon the termination
of the parties’ joint ownership of
the property had been decided.
[8]
At the end of the trial the court a quo
made an order in the following terms:
(i)
The co-ownership
between the parties in respect of the property described as The
Remainder of the Farm Bovenplaat no 115, in the
Berg River
Municipality, Division Piketberg, Province of the Western Cape, in
extent 156, 7454 hectares[
[9]
]
(“the property”) is hereby dissolved;
(ii)
The defendant is
ordered, on demand, to do everything that is necessary to effect
transfer of his 1/10th undivided share in the
property to the
plaintiff within a period of 90 days;
(iii)
Should the defendant
fail to act as aforesaid the Sheriff is authorised in the defendant’s
stead to sign all documents and
generally do everything that is
required in order to effect the aforesaid transfer;
(iv)
The aforesaid transfer
shall be subject to the requirement of the Registrar of Deeds;
(v)
The parties will be
liable in equal parts for payment of all costs attendant to and/or
required for the registration of transfer;
(vi)
The plaintiff shall pay
to the defendant for his 1/10th undivided share an amount equivalent
to 1/10th of the market value of the
property after such value has
been determined by a qualified valuer. The valuer must
determine such value within a period
of 15 (fifteen) days from the
date of this order;
(vii)
Defendant is directed
to pay the plaintiff’s costs, including the qualifying and
preparation costs and expenses of the plaintiff’s
experts in
respect of whom expert evidence summaries had been delivered.
[9]
The plaintiff obtained leave to
cross-appeal against the failure by the trial court to determine the
value of the property for the
purpose of determining the amount he
had to pay the defendant for the latter’s one tenth interest.
The plaintiff failed
to prosecute the cross-appeal timeously in
accordance with the rules. He applied for condonation of his
default. The
application was not opposed. We were of the
view it would be in the interests of justice to grant condonation and
an order
to that effect was made before we heard argument in the
appeal. The plaintiff must bear any wasted costs occasioned by
the
application for condonation.
[10]
The defendant’s notice of appeal sets
out numerous grounds of appeal. It would impose unduly on this
judgment to address
them individually. Indeed, the all too
evident tendency of some practitioners to attack each and every
aspect of a judgment
in a notice of appeal is to be discouraged.
They should be mindful that the resultant lack of focus is liable to
detract
from the presentation of their clients’ cases by
eliciting the sort of judicial scepticism illustrated in the comment
by
a US Appeals Court judge that when he sees ‘an appellant's
brief containing seven to ten points or more, a presumption arises
that there is no merit to
any
of
them’.
[10]
The material grounds of appeal upon which the defendant relies
are:
1.
That the court a quo erred in not following
the judgment in
Van der Bijl
and
in finding that it was ‘legally impossible’ to make a
partitioning order;
2.
That the court a quo erred in finding that
the subdivision of the farm would be impracticable and in doing so
had failed to take
sufficient cognisance of the objective evidence to
the contrary, most particularly that of Cornelius Van der Walt and
Anella Coetzee.
[11]
The trial court was seized of a claim under
the
actio communi dividundo
.
The applicable principles have been rehearsed in at least two
judgments of the appeal court: see
Estate
Rother v Estate Sandig
1943 AD 47
and
Robson v Theron
1978 (1) SA 841
(A).
[12]
In
Estate
Rother
, at pp. 53-54, De Wet CJ
stated, with reference to the authorities to which the court had been
referred in argument:
It
seems to me that the effect of these authorities is fairly summed up
by De Villiers CJ in
Dickson v Stagg
(3 S.C. 115)
, as follows:
-
‘
It
is quite true that under the ordinary law one of two or more
co-proprietors is entitled to claim a partition of the land, but
that
rule is subject to exceptions, one of these exceptions being that
where it was impracticable or inequitable to allow such
a partition,
the Court would in such a case make such an order as the justice or
the equity of the case might require.’
The
discretion of the Court is a wide one and one of the recognised modes
of division is a sale by public auction. See Groenewegen's
note to
Grotius 8.28.8; Schorer note 444; van Leeuwen, R.H. Recht, 4.29.3;
Censura Forensis 1.3.27, 5 and 7; Voet 10.3.3 and 10.2.22.
[13]
In
Robson
,
Joubert JA offered the following insights into the
actio
communi dividundo
:
This
action which originated in Roman law has been adopted in Roman-Dutch
law as the
actie van deelinge
or
actie van scheydinge
.
It is well known in our present law. Its chief characteristics appear
from
Voet
, 10.3.1. (
Gane's
trans.):
‘
This action for the division of common property
is a mixed, a two-sided and a
bona fidei
action. [
[11]
]
By it those who hold property in common. generally by particular
title, claim to have it divided and personal items of payment
made
good. It is available, that is to say, to those who hold common
property in undivided shares. This is so whether the property
is
common between them in a partnership or without a partnership
D
.10.3.2.; whether
they possess it, or neither of them or only one of them is in
possession
D
.10.3.30;
whether they hold the common ownership on the same or on different
rights, the one perchance by title of institution as
heir and the
other by title of legacy
D
.10.3.8.1;
and whether they are direct or beneficial owners.’
…
The
actio communi dividundo
has a two-fold purpose, viz. to claim division of joint property and
payment of
praestationes personales
relating to profits enjoyed or expenses incurred in connection with
the joint property.
Van der Linden
,
1.15.15;
Voet
, 10.3.3
Van Leeuwen,
Censura Forensis
,
1.4.27.2,4.
The
basic notion underlying the
actio communi dividundo
is that no
co-owner is normally obliged to remain such against his will. Van
Leeuwen,
Censura Forensis
, 1.4.27.1. Accordingly when
co-owners are desirous of having their joint property divided and the
share of each allotted to them
in severalty, they may agree to the
division among themselves without having recourse to judicial
proceedings.
‘
Where
there are co-owners who have agreed to divide then the only relief
that one can claim from the other is an action for specific
performance in terms of that agreement. Secondly, if there is a
refusal on the part of one of the co-owners to divide then the
other
co-owner can go to Court and ask the Court to order the other to
partition. Again, if the parties agree that there is to
be a
partition but the parties cannot agree as to the method or mode of
partition, the Court is asked to settle the mode in which
the
property is to be divided’
(
Ntuli
v Ntuli
,
1946 T.P.D. 181
at p. 184,
per
Barry JP).
The
Court has a wide equitable discretion in making a division of the
joint property, having regard,
inter alia
, to the particular
circumstances, what is most to the advantage of all the co-owners and
what they prefer. Bort,
Advyssen
, 19; Van Leeuwen,
Censura
Forensis
, 1.4.27.5;
Voet
, 10.3.3. It is interesting to
note that the modes of division referred to by the Roman-Dutch
jurists are substantially identical
to the modes of distribution of
partnership assets as described by
Pothier
. Cf.
De Groot
,
3.28.6. Thus where it is impossible, impracticable or inequitable to
make a physical division of the joint property, the court
in
exercising its equitable discretion may award the joint property to
one of the co-owners provided that he compensates the others,
or
cause the joint property to be put up to auction and the proceeds
divided among the co-owners.
Voet
, 10.3.3, read with
Voet
,
10.2,22 - 28;
De Groot
, 3.28.8; Van Leeuwen,
R.H.R
.,
4.29.3; Van Zutphen,
Practyke de Nederlantsche Rechten, sub voce
scheydinge no. 7; Wassenaar,
Practyck Judicieel
, cap. 7. no.
45; Pause,
Observationes Tumultuariae Novae
, vol. 1, no. 77.
Cf.
Estate Rother v Estate Sandig
,
1943 AD 47
at pp. 53 - 54;
Drummond v Dreyer
,
1954 (1) SA 306
(N).
[14]
It follows that the trial court was vested
with a discretion to determine the basis upon which the parties’
joint ownership
should be terminated. The discretion was one in
the wide sense of the word. This court is therefore able to
substitute
its own determination for that of the court a quo if we
are convinced, for reasons founded in law or predicated on a
different
finding on the facts, that the application should have been
decided differently.
We are not as limited in our
ability to interfere as we would have been if the decision of the
court a quo had been made in the
exercise of a discretion in the true
or narrow sense.
[12]
[15]
The court a quo decided that an order for the physical
partitioning of the farm between the protagonists was legally and
practically
impossible. The defendant’s counsel argued
that the decision was unfounded on both bases. He submitted
that it
was incongruous with the statement of the applicable law in
the judgment in
Van der Bijl
on the first leg and against the
weight of the evidence on the second leg. If his submissions
were well made that would give
this court the liberty to interfere in
the determination made by the trial court.
[16]
The judgment in
Van
der Bijl
was concerned with an
application by the defendants in that matter to amend their plea in
various respects. The application
was opposed. As Baker J
observed, the effect of the part of the proposed amendment pertinent
to the current matter was essentially
in the nature of an exception
that no cause of action had been disclosed in the particulars of
claim. The defendants in that
matter had sought to introduce an
allegation that the plaintiffs’ claim for a partition of the
agricultural land owned jointly
by the parties could not succeed
absent proof that the Minister had consented, or was willing to
consent, to it in terms of the
Subdivision Act. The learned
judge rejected the allegation that the defendants in that case sought
to introduce as legally
unsound. He did so on the basis that
the Act had not introduced any new requirements to the
actio
communi dividundo
. It certainly
contained nothing to suggest an intention that the
actio
should not apply in respect of agricultural land. The judge
acknowledged, however, that the effect of the Subdivision Act
was
that a partition order in respect of agricultural land could not be
carried into effect without the consent of the Minister,
but held
that that did not oust the court’s jurisdiction to make such an
order, even if its effect in the circumstances would
only be
provisional pending ministerial approval of a subdivision in
accordance with its tenor. Baker J acknowledged
that in
the event of the Minister subsequently refusing to give the required
consent the parties could find themselves back at
square one, as in a
game of snakes and ladders.
[17]
Our
attention was not directed to any case in which a partition order had
been made by a court in respect of agricultural land in
circumstances
in which there was no indication as to whether or not the Minister’s
consent had been given or would probably
be forthcoming. In
Bekker NO v Duvenhage
1977 (3) SA 884
(E), which concerned a claim for the enforcement of a
contract that would require a subdivision of agricultural land to be
effected,
it was held that a court would not make a partition order
in circumstances in which the Minister had refused to consent to a
subdivision.
The reasoning for that determination was the
contract in issue in that case had become extinguished when it became
impossible of
performance upon the Minister’s refusal to
consent to the required subdivision. The position in
Bekker
was therefore quite distinguishable on
its facts from the principle described in
Van
der Bijl
. An order for the
partitioning of the land in that case would quite evidently have been
a
brutum fulmen
.
[18]
As mentioned, the plaintiff’s counsel
sought to distinguish
Van der Bijl
on the ground of a subsequently effected amendment to s 4 of the
Subdivision Act. The effect of the amendment
has already
been described above.
[13]
The plaintiff’s counsel argued that in the face of either
owner’s unwillingness to be party to the required application
for ministerial consent, any partition order would be a
brutum
fulmen
. There is no merit
in the contention that the plaintiff could frustrate the
effectiveness of any partition order by
refusing to be party to the
required application to the Minister in terms of s 4 of the
Subdivision Act. Any court making
a partition order in respect
of agricultural land in circumstances in which the Minister’s
consent was still to be obtained
could competently make ancillary
orders directed at assisting the effectiveness of the partition
order. These might include
giving the parties directions to
submit the application to the Minister within a given period and
providing for a surrogate, such
as the Sheriff, to do whatever was
necessary to that end on behalf of any recalcitrant party. It
seems to me that the argument
advanced on behalf of the plaintiff in
this respect ignores the effect on the property of the institution of
proceedings under
the
actio
.
Once
litis contestatio
has been reached in such proceedings, the property is
res
litigiosa
and may then be disposed of
only in accordance with the court’s judgment.
[14]
The notion that one of the parties might be at liberty to frustrate
the execution of the court’s order is inconsistent
with that
reality. I respectfully disagree with the
obiter
dictum
[15]
by Roux J in
Kruger v Terblanche
1978 (2) SA 198
(T), at 206H that the court could
not compel the parties to make an application in terms of the
Subdivision Act.
[19]
The notion expressed in the judgment of the
court a quo that a court cannot direct that an application for
subdivision be submitted
in a case in which one of the co-owners did
not desire to make such an application, on the basis that to do so
would be to make
an agreement for the parties, is unfounded.
The court would not be making an agreement between the parties; it
would be determining
upon subdivision as the appropriate means of
terminating the co-ownership order and giving directions as to how
that end was to
be obtained.
[16]
[20]
In any event, I do not consider that the
amendment of s 4(1) of the Subdivision Act bears the
significance that the plaintiff’s
counsel sought to attach to
it. Even before the statutory amendment, an application for
ministerial consent would have been
purposeless if it did not have
the owner’s buy-in, for without the owner’s co-operation
any consent obtained from the
minister could not have been carried
into effect. The amendment had the effect that the Minister is
now required to entertain
only applications by the owners of
agricultural land. Non-owners may not submit such applications.
In a situation in
which one or more of the co-owners of
agricultural land wishes to subdivide and the other(s) not, I would
imagine that if the difference
of opinion is irresolvable and serious
enough, proceedings in terms of the
actio
communi dividundo
would probably
follow.
[21]
In my judgment the court a quo was
therefore misdirected in holding that it was legally impossible to
make an order for the partitioning
of the farm. The position
adopted by the court a quo entailed an unjustified rejection of the
authority of the judgment in
Van der
Bijl
.
[22]
The bases upon which the trial court sought
to distinguish
Van der Bijl
,
namely, (i) that the parties in that case both agreed on a
partitioning of the farm and (ii) the effect of the subsequent
amendment of s 4(1)(a) of the Subdivision Act, are not
sustainable. It is correct that the parties in
Van
der Bijl
both considered that the farm
was practicably capable of subdivision, but they were at odds as to
how the subdivision should be
defined. As the parties all
accepted what the value of the farm was, the defendants had offered
to buy the plaintiffs share
for an amount determined with relation to
their proportionate ownership of the whole. The plaintiffs were
unwilling to be
bought out on that basis. There was therefore
no agreement between the parties in respect of the subdivision of the
land,
as apparently understood by the judge a quo. The
defendants in
Van der Bijl
had sought in a special plea to frustrate the plaintiffs’ claim
for a partition order on the basis that it could be carried
out only
with the consent of the Minister of Agriculture. They sought to
contend that such consent could be obtained only
with their
co-operation and agreement, which would not be forthcoming. The
position of the defendants in
Van der
Bijl
in respect of the consent required
from them in any application for ministerial approval was thus
essentially indistinguishable
from that maintained by the plaintiff
in the current case. I have already indicated how a court is
able to address the position
of an uncooperative co-owner by
appropriate formulation of the terms of the partitioning order.
[23]
Whether the conclusion that the trial court
was materially misdirected on the law merits interference by us on
appeal with the orders
that it made depends, of course, on the
practical considerations. The misdirection would be of no
moment if a partitioning
order would have been impracticable.
The misdirection does, however, mean that we are at liberty to
substitute our own order
should we conclude on the basis of our own
assessment of the evidence and in the exercise of
our
discretion that the outcome of the
trial should have been a different one.
[24]
As noted earlier,
Van
der Bijl
was a decision made on a
question that in effect raised a point on exception. Even if it
is assumed that the absence of ministerial
consent does not detract
from the court’s authority to make a partitioning order, there
is a well-established disinclination
by courts to make orders that
are, or would be, likely to be ineffectual – the so-called
‘
brutum fulmen
’.
[17]
Evidence as to the prospects of ministerial consent being forthcoming
is undoubtedly relevant in a trial context when physical
partition of
agricultural land is being sought in a claim under the
actio
communi dividundo
.
[18]
Indeed, the only reason I can think of that would have justified the
extensive evidence adduced by both sides in the current
case on the
likelihood or unlikelihood of ministerial consent being obtained for
any partitioning of the land that might meet the
requirements of a
termination of the joint ownership was the need to persuade the trial
court about the likely effectiveness, or
ineffectiveness, as the case
might be, of a partition order.
[25]
The plaintiff adduced evidence that the
Minister would be unlikely to consent to a subdivision and that
therefore the court should
exercise its discretion in favour of
terminating the joint ownership by some other mode of division.
The defendant’s
evidence, by contrast, was directed to persuade
the court that the conventional approach of physical partition was
feasible.
In point of fact neither party conducted the trial on
the basis that the Minister’s consent was legally a
sine
qua non
to the court’s power to
make a partition order. Had the plaintiff’s attitude been
that the court was absolutely
precluded from making a partition order
he would, no doubt, have noted an exception to the defendant’s
claim in reconvention.
He did not.
[26]
The object of the Subdivision Act is, in
the national interest, to prevent the fragmentation of agricultural
land into uneconomic
units.
[19]
It was common cause that Bovenplaat Farm No. 115 fails to
qualify as an economic agricultural unit according to the
criteria
applied by the Department of Agriculture in terms of the
Conservation
of Agricultural Resources Act 43 of 1983
. However, it was also
not in dispute that the Department was opposed in principle to any
reduction in agricultural capacity
by the subdivision of even
uneconomic agricultural units. As I understood the evidence,
the rationale for this approach is
to preserve the potential for such
units to be consolidated with other units to create or restore
economically sustainable agricultural
land units for the future
benefit of the country.
[27]
The defendant adduced evidence to indicate
that he could achieve a situation in which a consolidation of
uneconomic units on more
fertile ground in another part of the
Piketberg municipal area could be offered in exchange for a
subdivision of B…. Farm
No. 1……..
That such considerations might favourably affect an application for
ministerial consent was
common cause between the expert witnesses.
The plaintiff’s experts maintained that the alternative land
had to be close
by to the land that it was proposed to subdivide, a
proposition that was resisted by the defendant’s witnesses.
The
defendant’s witnesses gave examples of successful
applications where the land to be consolidated was situate a
significant
distance away from the land to be subdivided.
Having regard to the object of the Act, I fail to see why the
relative proximity
of the land units concerned should be
determinative. That has nothing to do with the apparently
desired result, which is
the maintenance and increase, nationally, of
agricultural land units of a size that will enhance agricultural
productive capacity.
[28]
The trial court was bound, in my view, to
have attached significant weight to the evidence of Cornelius van der
Walt, an official
in the Western Cape Department of Agriculture
charged with making recommendations to the national Department in
respect of subdivision
applications, that an application for the
subdivision of the farm as proposed by the defendant enjoyed good
prospects of success.
Van der Walt testified that he would
support such an application in principle and that the national
Department followed his
recommendation in the determination of the
vast majority of applications submitted in terms of s 4 of the
Subdivision Act.
[20]
The trial judge briefly summarised the import of Van der Walt’s
evidence in her judgment, but did not indicate the
weight, if any,
that she had attached to it. This may well have been because of
her view that the plaintiff’s voluntary
participation in any
application for ministerial consent was a
sine
qua non
. If that view had been
well-founded, Van der Walt’s evidence would indeed have carried
little value in the face of
the plaintiff’s opposition to the
partitioning of the farm.
[29]
There was also evidence that the Minister
had historically adopted an indulgent approach to applications for
the subdivision of
agricultural land when these sought to effect a
division of ownership in cases when undivided co-ownership had vested
in the parties
prior to the commencement of the Subdivision Act.
It will be recalled in this regard that the defendant had come into
his
undivided share of the property in 1966, whereas the Act came
into operation on 2 January 1971. The trial judge made no
reference
to this evidence in her judgment. This might have
been for the same reason that I have ventured for her failure to
weigh
the evidence of Van der Walt.
[30]
Other factors that weighed in favour of the
prospects of a subdivision application being favourably considered
were the proximity
of the portion of the farm that the defendant
wished to have registered in his name to a number of existing small
holdings.
There was a farm between those small holdings and the
portion of B……. No 1……… to
which
the defendant laid claim – which is a negative factor,
but as the crow flies, the distance across the relevant portion of
the intervening farm and the subject property is a very short one.
Furthermore the evidence indicated that the subject property
lies
just outside the urban edge of Velddrif and on the side of the town
towards which any urban expansion is expected to occur.
[31]
Even were the Minister of Agriculture to
consent to a subdivision, it could not be effected without the
approval of certain other
authorities. Approval would also be
required from the municipality in terms of the applicable land use
planning legislation,
from the Department of Water Affairs because
the farm borders on the Berg River and from the roads authority in
respect of questions
of access to a proclaimed road. The
evidence suggested that any proposed subdivision would receive
consideration by all the
relevant authorities on a co-operative and
co-ordinated basis. I have already mentioned the factors that
could militate towards
a favourable consideration by the planning
authority. The part of the farm that would be the subject of
subdivision is far
removed from its river front area and does not
appear to have any characteristics that would be of material interest
to the Department
of Water Affairs. The defendant uses
municipal water on the portion of the property that he occupies.
The proposed
subdivision would not change the current access
arrangement to the farm and thus is also not expected to excite any
opposition
by the roads authority. The current access road
transects the portion of the farm that the defendant wishes to have
excised.
The defendant is willing for the existing access to
the remainder of the farm to be maintained. He proposes the
registration
of a right of access in favour of the remainder along
the existing route of the road over the portion of the land that
would be
transferred into his ownership when the subdivision is
effected.
[32]
In my judgment all the aforegoing factors,
weighed cumulatively, afforded sufficient indication that an
application for the partition
of the farm in such a way that would
allow the defendant to remain living in his house and the continued
enjoyment of the area
around it that he gardens would apparently
enjoy realistic prospects of success. The fact that various
statutory consents
would be required for the partitioning of the
property thus did not in the circumstances of this case justify
adopting an approach
that ruled out terminating the parties’
co-ownership by way of a physical division between them of the
commonly owned property.
As the description of the common law
earlier in this judgment illustrates, a physical division is the
indicated course, unless
it would be
impossible, impracticable
or inequitable
.
[33]
It should perhaps be mentioned that the
plaintiff’s counsel argued that a subdivision of the farm was
impracticable because
of the time that would be entailed in
processing the necessary applications through the offices of the
statutory authorities whose
consent or approval would be required.
The evidence establishes that that might take several years. I
am unpersuaded
by the argument. The bureaucratic processes
involved in unravelling co-ownership of agricultural land are an
inherent factor
in the co-ownership of such land. They go with
the territory, as the saying goes. They do not detract from the
common
law principles that apply when the parties desire the
termination of their co-ownership and are unable between themselves
to agree
how that should be achieved.
[34]
There was also considerable emphasis in the
papers and in argument on the fact that the plaintiff and the
defendant do not get on
well together. They have been difficult
neighbours. It is unnecessary to set out the sometimes
insalubrious detail.
Suffice it to say that I do not consider
the state of their personal relationship to be of relevance to the
division of the property.
There is no reason to regard it as a
basis for preferring the one’s prima facie entitlement to a
part of the property, to
which each of them has familial ties, over
that of the other. And if they should continue to find their
life as neighbours
trying after the farm has been partitioned, their
experience in that regard will not be unlike that of many other
property owners
who find themselves living in unhappy propinquity to
the person next door.
[35]
The defendant claimed an eccentrically
shaped portion of the farm in the vicinity of the dwelling house that
he occupies.
The portion is approximately 15 hectares in
extent, which represents roughly 10 per cent of the total area of the
farm as per the
title deed, albeit significantly less so of its
actual extent, even taking into account a portion that is subject to
expropriation
for the purposes of the Sishen-Saldanha railway line
that transects the farm. The odd geometric shape of the portion
claimed
by the defendant is explained by his desire to obtain a land
unit that will include not only the dwelling house in which he
resides
and its immediate surrounds, but also an area that would give
him a physical link from there to the family graveyard and
incorporate
the graveyard itself. The defendant’s parents
are both buried in the graveyard and it is the defendant’s wish
ultimately to be interred there himself. He regularly visits
the graveyard and has tried to keep it in some form of order.
There is no laid out route between the defendant’s house and
the graveyard. He walks over the veld to get there.
[36]
We enquired of the plaintiff’s
counsel during the hearing whether, if the defendant were to be
awarded a portion of the farm
that did not include the private
cemetery, the plaintiff would be willing to allow him access and the
choice to be buried there.
We were advised by counsel, after he
had taken instructions that the plaintiff would not be willing to
afford anyone the right
to enter on the farm or be buried there if he
were to become its sole owner or the sole owner of the major portion
of it.
[37]
The farm does not lend itself to an
equitable division simply by dividing its physical extent between the
parties in direct proportion
to the extent of their undivided
interest. Parts of the farm comprise marshy areas near the
river that are not usable.
The soil in the other parts is of
variable quality for agricultural purposes. Some of the best
grazing area, for example,
lies close to or around the defendant’s
dwelling. The evidence concerning the market value of the land
was wildly disparate.
The plaintiff’s valuer valued it on
the assumption that it would be used as the plaintiff currently uses
it; that is as an
uneconomic agricultural land unit. He
determined a value of just over R2,3 million. The
defendant’s valuer
contended that ‘the highest and best
use’ of the land was as a lifestyle property – a rural
retreat for a wealthy
city dweller. There was evidence that
certain other river-fronting properties in the area were used as
holiday properties.
The defendant’s valuer estimated the
market value of the property at over R9 million. There
were valid reasons
to be critical of both valuations. There was
no evidence as to the value of the portion of land that the defendant
wished
to have apportioned to him as a subdivided unit. It was,
however, common cause that the smaller unit that would result if
the
subdivision were effected would have a significantly higher rand
value per hectare than the larger remainder.
[38]
In the circumstances the court is left in
the position in which it must determine the physical apportionment of
the land as best
it can on the rather uncertain evidence as to its
value to achieve a fair division between the parties. It must
do so having
regard to their respective needs and interests in the
land and with a view to the objective that the division should also
broadly
bring about a result that in a monetary or financial sense
would reflect their proportionate shares in the current ownership of
the undivided whole. In my judgment that result would be
achieved if we were to direct that the area of approximately five
hectares delineated within the red line endorsed on the aerial
photograph at p 219 of Bundle A of the trial record must be
subdivided and registered in the defendant’s name as sole
owner, against the registration of the remaining area of the farm
as
the sole property of the plaintiff, and that he be granted certain
servitutal rights to be discussed presently. The area
to be
apportioned to the defendant in terms of the contemplated subdivision
includes the current access to the farm from the adjacent
public
road. A right of way along the route of the current access road
to the plaintiff’s compound on the farm will
have to be
registered over the defendant’s portion of the land in favour
of the remainder.
[39]
The area apportioned to the defendant
excludes the family graveyard. In order to access the
graveyard, the defendant would
need to be given some form of right of
way.
[21]
To maintain his interest in the graveyard, he would also need to be
given the right to tend to the graves and the right to be buried
there. Whereas there was a closed number of recognised personal
servitudes in Roman Law, that is no longer the case in modern
law.
[22]
(In
Nkosi and Another v Bohrmann
[2001] ZASCA 98
(25 September 2001), at para 37, it was held that
s 6(4)
of the
Extension of Security of Tenure Act 62 of 1997
gave everyone the right to visit and maintain family graves on land
belonging to someone else. Howie JA remarked that ‘[s]ubject
to reasonable conditions imposed by the owner or person in charge as
to safeguarding life or minimising work disruption on the
land
concerned, this subsection, apart from imposing what is in effect a
right of way over the land, entitles family of the buried
deceased to
maintain graves indefinitely, including tombstones and railings, if
any. The impact of all these provisions is
that a grave,
practically and legally, effects a permanent diminution of the right
of ownership of the land’.
[23]
It is always possible, however, that the legislation could be amended
to remove the effect of the subsection. It is
therefore
desirable that the intended result be entrenched by the registration
of an appropriate servitude.)
[40]
After the hearing of the appeal and upon
our direction we were provided with a report by the registrar of
deeds.
Section 97(1)
of the
Deeds Registries Act 47 of 1937
provides that ‘
Before any application is made to the
court for authority or an order involving the performance of any act
in a deeds registry,
the applicant shall give the registrar concerned
at least seven days' notice before the hearing of such application
and such registrar
may submit to the court such report thereon as he
may deem desirable to make.’ The registrar has indicated
that, subject
to compliance with any applicable law, there would be
no objection to relief being granted as sought in the proceedings.
[41]
In order to achieve the contemplated
subdivision of the farm, applications will have to be made to the
various authorities mentioned
earlier. It would be appropriate
in the circumstances for the court order to incorporate directions to
the parties to make
such application within a stipulated period and
to provide that in the event of either of them declining to sign or
endorse the
documentation required for that purpose, the Sheriff for
the district of Velddrif be authorised and directed to do so on that
party’s
behalf and in that party’s name.
[42]
The parties should bear the costs of
effecting the contemplated subdivision equally. Such costs
would include the costs of
the required land surveys, professional
fees and any charges levied by the organs of state concerned in
respect of the required
applications in terms of the applicable
statutory instruments.
[43]
As acknowledged above, it is possible that
the contemplated physical division of the property between the
parties might be thwarted
by virtue of the refusal of any of the
relevant authorities to grant the required statutory consent or
approval. In that
event, and allowing for the determination of
any appeals or applications for judicial review that either party
might consider indicated
in the circumstances, the property will have
to be sold by public auction. The order to be made will make
provision for such
contingency.
[44]
The defendant has been substantially
successful in the appeal. Apart from its cross-appeal
concerning the formulation of part
of the trial court’s order,
the plaintiff sought to defend the judgment of the court a quo.
The order to be made in
the appeal renders the cross-appeal
irrelevant. There is no reason why the costs of the appeal
should not follow the result.
The trial court ordered the
defendant to pay the plaintiff’s costs in the action. In
my view, having regard to the
peculiar ‘two sided’
character of a claim under the
actio
communi dividundo
,
[24]
the generally appropriate order in such matters should be that each
co-owner bear his own costs. The litigation was necessary
because they were unable to reach agreement on the basis of the
termination of their co-ownership. I do not think either
of
them can be said to have been unreasonable in contending for the
termination to be effected in the different ways pleaded in
the
claims in convention and reconvention.
[45]
The following order is made:
a.
The appeal is upheld with costs.
b.
The order made by the trial court is set
aside and substituted with an order in the following terms:
i.
It is directed that the parties
co-ownership in undivided shares of the Remainder of the Farm B…….
P……
No. 1…… P…… held by the
parties under Deeds of Transfer T1……. and T5……..
(hereinafter referred to as ‘the farm’) be terminated in
accordance with the provisions of paragraphs ii-xiii
below.
ii.
It is directed that, subject to the
required statutory consents and approvals therefor being obtained,
the farm must be subdivided
in a manner so as to enable the area of
approximately five hectares delineated within the red line endorsed
on the aerial photograph
p 219 of Bundle A of the trial record,
a copy of which is annexed, to be registered as a separate land unit
in the defendant’s
name as sole owner, against the simultaneous
registration of the remaining area of the farm in the sole ownership
of the plaintiff.
iii.
The parties are directed, after mutual
consultation with each other, either directly or through their
respective attorneys, to jointly
submit the necessary applications
for the required consents and approvals for the subdivision of the
farm in terms of paragraph
(ii) above, including any application for
the rezoning of the land that might be inherently necessary for the
purpose, within nine
(9) months of the date of this order, or such
extended period as they might agree upon in writing or as might be
granted on application
to a judge in chambers.
The
defendant shall be entitled, should he so wish, to support the
application(s) for subdivisional approval by offering any other
agricultural land he may be able to secure for consolidation
purposes.
iv.
In the event of either party failing or
refusing to complete or sign any document required to be submitted in
support of any required
application referred to in paragraph (iii)
above, within 10 days of having been requested by the other party or
his attorney in
writing to do so, the Sheriff for the district of
Velddrif is hereby authorised and directed to complete or sign such
document
in the stead of and on behalf of the party who is in
default.
v.
Any subdivision of the farm to be effected
in terms of paragraph (ii) above, shall include provision for the
registration of a praedial
servitude of right of way over the portion
of the farm to be separately registered in the defendant’s name
in favour of the
remainder thereof to be separately registered in the
plaintiff’s name. Unless the parties otherwise agree in
writing
to be signed by both of them or by their agents authorised
thereto by them in writing, the route of the servitude shall be
determined
to coincide with the route of the current access road onto
the farm from the R399.
vi.
It is directed that simultaneously with the
registration of ownership of the subdivided properties contemplated
in terms of paragraph
(ii) above, there shall be registered a
personal servitude in favour of the defendant against the title deeds
of the remainder
of the farm in terms whereof the defendant shall be
afforded the right for the duration of his lifetime to access the
private graveyard
situate on the farm and tend to the graves there
and upon his death to be interred or, should he be cremated, to have
his ashes
interred in the said graveyard.
vii.
The plaintiff is directed to furnish any
consent that may be required to enable the registration of the
personal servitude contemplated
in terms of paragraph (vi) above.
viii.
In the event of the plaintiff failing or
refusing to furnish any consent referred to in paragraph (vii) within
10 days of having
been requested in writing to do so by the defendant
or his attorney, the Sheriff for the district of Velddrif is hereby
authorised
and directed to do everything necessary to furnish such
consent in his stead and on his behalf.
ix.
The plaintiff and the defendant shall be
jointly and equally liable in respect of the costs and charges
necessarily to be incurred
in respect of the necessary applications
referred to in paragraph (iii) above and in respect of the
registration of the praedial
servitude contemplated in terms of
paragraph (v); and in the event of one party paying more than his
share thereof he shall be
entitled to recover the overpayment from
the other.
x.
Save for any costs incurred in connection
with the granting of any consent thereto by or on behalf of the
plaintiff (which shall
be borne by the plaintiff), the defendant
shall be solely responsible for payment of any costs to be incurred
in respect of the
registration of the personal servitude contemplated
in terms of paragraph (vi) above.
xi.
In the event of any of the required
consents or approvals for the subdivision of the farm in accordance
with the provisions of the
aforegoing paragraphs of this order being
refused, and after the unsuccessful exhaustion of any appeal or
review remedies of which
the parties might avail in respect of any
such refusal, alternatively, in the event of the parties failing to
make the necessary
applications within the period permitted in terms
of paragraph (iii) above, and after the final determination of any
claim still
pending in respect of the issues reserved for later
determination in terms of the ruling in the action made by the trial
court
in terms of
rule 33(4)
, the farm shall, upon not less than 10
days’ written prior notice by either party to the other, be
placed in the hands of
the Sheriff for the district of Velddrif to be
sold, without reserve, at a public auction to be conducted by the
Sheriff in as
close accordance as may be practicably and
appropriately possible with the provisions of rule 46 of the Uniform
Rules of Court,
with the party placing the property in the hands of
the Sheriff being regarded for that purpose as if he were the
‘execution
creditor’.
xii.
The parties shall be liable
inter
se
for the costs incurred in respect of
any sale of the property in terms of paragraph (xi) above in direct
relationship to the extent
of their respective co-ownership of the
property; that is as to nine-tenths by the plaintiff and one-tenth by
the defendant.
xiii.
The net proceeds of any sale of the farm
pursuant to the provisions of paragraph (xi) above, shall be paid by
the Sheriff upon transfer
of the property in favour of the purchaser
as to nine-tenths thereof to the plaintiff and one-tenth to the
defendant.
xiv.
Each party shall bear his own costs in
respect of the trial of the issues before Cossie AJ.
A.G.
BINNS-WARD
R.
ALLIE
V.C.
SALDANHA
[1]
An order that the parties’
co-ownership of the farm B……. No. 1…….…
be terminated.
(My translation.)
[2]
That the defendant be directed to do
all things necessary to effect the transfer of his one tenth share
in the property to the
plaintiff against payment by the plaintiff of
the sum of
R233.260,00
or such other amount as the parties might agree in writing.
(My
translation.)
[3]
Alternatively to A2 above, that the
parties co-operate to appoint an auctioneer within 10 days of the
date of this order to, within
30 days thereafter and after not less
than 10 days’ notice by the auctioneer in an advertisement to
be placed in one English
language and one Afrikaans language
newspaper circulated in the area in which the property is situated,
sell the entire property
to the highest bidder by public auction to
be conducted on the property. (My translation.)
[4]
That nine tenths and one tenth of
the proceeds of the sale after deduction of the auctioneer’s
commission, advertising costs,
and any other costs reasonably
necessarily incurred to effect the sale be paid to the plaintiff and
the defendant, respectively,
upon transfer of the property into the
purchaser’s name. (My translation.)
[5]
In the event of either party failing
to comply with any of the aforegoing orders, the Sheriff is
authorised and directed to do
everything necessary (according to the
circumstances) for the carrying out of the aforementioned orders (My
translation.)
[6]
Directing the defendant to pay the
plaintiff’s costs of suit, such costs to include the
qualifying and preparation costs
of the plaintiff’s expert
witnesses whose summaries or reports have been filed of record.
(My translation.)
[7]
The Subdivision Act has been repealed in terms of the
Subdivision of Agricultural Land Act Repeal Act 64 of 1998.
The repealing
legislation has, however, not been brought into
effect. In
Wary Holdings (Pty) Ltd v
Stalwo (Pty) Ltd and Another
[2008] ZACC 12
;
2009 (1) SA 337
(CC), at para 91, the Constitutional Court ventured a number of
possible reasons for the long delay in bring the repealing
legislation into effect; viz. (a) that the legislature may seek
to put other provisions in place in terms of which national
government would have other means to control the subdivision of
‘agricultural land’,
(b) pending provincial governments acquiring
the required capacity to administer the functional area of
agriculture and the
assignment of such administration to them,
(c) the assignment of the administration of the functional area
of agriculture
to municipal authorities. Chapter 8 of the
Draft Sustainable Utilisation of Agricultural Resources Bill of
2003, which
was not introduced in Parliament, contained provisions
which, if adopted, would substantively reintroduce the repealed
legislation.
The draft bill suggests that the first of the
aforementioned possibilities ventured by the Constitutional Court
offers the most
likely future course.
[8]
‘
Owner
’ is
defined in s 4(1)(b) of the Subdivision Act with reference to
the meaning assigned to the word in
s 102
of the
Deeds
Registries Act 47 of 1937
.
[9]
The extent of the property given in
the court order was taken from title deed. It was common
cause, however, that the area
given in the title deed was incorrect,
apparently as a result of primitive survey methods.
[10]
Aldisert,
Opinion
Writing
, (1990) at
89, commended to Australian counsel by McHugh J in
Tame
v New South Wales
[2002]
HCA 35
, at para 70. See
Hing
and Others v Road Accident Fund
2014 (3) SA 350
(WCC), at para 4 (note 2).
[11]
Watermeyer J quoted
Buckland,
Roman Law
at 539 on
the
actio communi dividundo
as follows: ‘The action was a
bonae
fidei iudicium, duplex
, in the sense that
its formula did not distinguish plaintiff and defendant; it was
expressed to apply to all parties alike, though,
in view of
questions of proof, the claimant of the action was treated as
plaintiff.’ This explains the meaning of
‘two
sided’ in its context in Gane’s translation of ‘
duplex
’
in the passage in Voet quoted by Joubert JA. See
Blue-Cliff
Investments (Pty) Ltd and Another v Griessel and Others
1971 (3) SA 93
(C), at 97B.
[12]
See
Knox
D'Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A), at 360D-362F and
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another
2015 (5) SA 245
(CC) at para 83-90.
[13]
At paragraph [6].
[14]
Blue-Cliff Investments (Pty) Ltd and Another v
Griessel and Others
supra.
[15]
The parties in
Kruger
v Terblanche
were
ad idem
that it was not practical to subdivide the property in issue.
[16]
This much is in fact essentially
spelled out in the passages from
Van
der Bijl
at p.
501B-F and 499A-D and 409H-500B, respectively, quoted by the trial
judge in paras. 47-48 of her judgment.
[17]
See the discussion above (at
para. [17]) of the judgment in
Bekker
NO v Duvenhage
.
[18]
Thus in
Kruger
v Terblanche
supra, at 206G, the court had regard to the opinion of the relevant
departmental official that consent for the subdivision of
the
agricultural land in issue in that case was most unlikely to be
given as a weighty factor against the practicability of a
portioning
order.
[19]
See e.g.
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd
2009
(1) SA 337
(CC)
(2008 (11) BCLR 1123
;
[2008] ZACC 12)
in para 13;
Geue and Another v
Van der Lith and Another
[2003] ZASCA 118
;
2004 (3) SA 333
(SCA) ([2003]
4 All SA 553)
at paras. 5 and 15 and
Adlem and Another v
Arlow
2013 (3) SA
1
(SCA) at para 9.
[20]
Agriculture is an area of concurrent
national and provincial competence listed in Part A of Schedule 4 to
the Constitution, and
in terms of s 41(1) national and
provincial government are enjoined to consult on matters of common
interest and co-ordinate
their actions and legislation with one
another in matters of common interest.
[21]
A servitude of
iter
ad sepulchrum
(footpath to a grave) was recognised in
Roman
Dutch law; see Joubert et al (ed) LAWSA, Second Edition, vol
24, para 580, n 4.
[22]
See, for example, CG Van der Merwe
Sakereg
2de uitgawe at 506-508.
[23]
Nkosi v Bohrmann
at para
37-38.
[24]
See para. [13]
and note 11
thereto,
above.