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[2017] ZAWCHC 102
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Orffer NO and Others v Orffer NO and Others (8064/2017) [2017] ZAWCHC 102 (15 September 2017)
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 8064/2017
Before
the Hon. Mr Justice Bozalek
Hearing: 4
September 2017
Judgment Delivered:
15 September 2017
In
the matter between:
FREDERICK
CHRISTOFFEL ORFFER
N.O.
1
st
Applicant
ANÉL
ORFFER
N.O.
2
nd
Applicant
ARNOLDUS
JACOBUS STOFBERG
N.O.
3
rd
Applicant
(in their
capacities as the trustees of the FC Orffer Trust (IT 21076/2014))
DROOMLAND
LANDGOED (PTY)
LTD
4
th
Applicant
and
CHRISTIAAN
JOHANNES ORFFER
N.O.
1
st
Respondent
ELMIEN
ORFFER
2
nd
Respondent
ARNOLDUS
JACOBUS STOFBERG
N.O.
3
rd
Respondent
(in their
capacities as the trustees of the Bloubank Boerdery Trust (IT
1050/2009))
DIE ORFFER
LANDGOED (PTY)
LTD
4
th
Respondent
JUDGMENT
BOZALEK J
[1]
This
application concerns a dispute between two brothers who occupy
adjoining farming properties over a servitudinal right of way
in
favour of the one brother’s property over the other’s
property. More specifically the dispute concerns whether a
suspensive
condition in a settlement agreement has now been fulfilled with the
result that all disputes relating to the issue must
now be referred
to arbitration.
[2]
Although
there are a variety of parties involved in the application as
applicants or respondents, in essence the contending parties
are the
first applicant and the first respondent viz the brothers. All the
other cited parties are either themselves or their wives
in their
capacities as trustees of family trusts or the commercial vehicle
through which the first applicant and first respondent
conduct their
farming ventures. For the sake of simplicity I shall to refer to the
brothers simply as applicant and respondent.
Background
[3]
The
two adjoining properties appeared to have constituted the farm
‘
Bloubank
No 52’
(‘the farm’) in the district of Tulbagh which was farmed
by the brothers jointly until 2013 when they found that they
could no
longer harmoniously work together. Accordingly they agreed to
subdivide the farm into Portions 1 and 2 with Portion 2
being farmed
by the applicant and Portion 1 by the respondent. It would appear
that fruit is grown on both portions and that at
least part of the
applicant’s business is to dry some of that fruit in a drying
yard/s. There is also a need, at least as
far as Portion 2 is
concerned, for heavy vehicles to travel onto the property to collect
fruit or dried fruit.
[4]
One
of the practical difficulties facing the parties on subdivision was
to create access to Portion 2 from the surrounding provincial
roads
and provision for such access had to be made in the subdivision plan.
To this end a servitudinal road passing over Portion
1 and giving
access off divisional road 1471 was apparently agreed and planned in
the terms of the subdivision and duly registered
in the deeds office.
I shall refer to this as the ‘
servitudinal
road’
.
After the subdivision was approved the respective portions of land
were sold to the applicant and the respondent. The subdivision
exercise was carried out by a team of professional persons including
an attorney and a land surveyor, a Mr David Hellig, who acted
on
behalf of both brothers in doing so.
[5]
In
approximately August 2016, prior to the subdivision being effected,
the respondent expressed his dissatisfaction at the location
of the
servitudinal road which enters his property at the traditional
entrance to the farm and goes past the dwelling which he
and his
family occupy on Portion 1. Discussions ensued between the brothers
which led to an agreement that the applicant would
rather gain access
to his property through a road to be built across respondent’s
portion but giving access and exit off
divisional road 1474. I shall
refer to that road as the ‘
Southern
road’
.
[6]
It
would appear that the parties were anxious for the subdivision to be
effected as soon as possible and to avoid delay they agreed
that the
application for subdivision would not be amended to reflect the
servitudinal right of way as constituting the Southern
road, as
opposed to the (original) servitudinal road. It was agreed rather
that the alternative access road i.e. the Southern road
would be
constructed by the respondent within a year after the subdivision was
effected at which point the servitudinal road would
simultaneously be
cancelled in the title deeds and replaced by the Southern road. It
was further agreed that in the meantime and
for the purposes of
conducting his farming business the applicant would use an existing
access road from divisional road 1471 which
also provided access to
his cold store and pack sheds on Portion 2.
[7]
According
to the applicant, however, the respondent reneged on his obligation
to construct the Southern road within the stipulated
time period and,
when he did commence doing so, it was not in accordance with the
agreed dimensions. Whatever the case, it would
appear that the
relationship between the parties deteriorated to the extent that on
10 November 2016 the applicant launched an
urgent application in this
Court in which he sought a reversion in his access arrangements to
the enforcement of the servitudinal
road in order to protect his
interests. That application was settled in a written agreement on 21
November 2016 which was incorporated
into a court order.
[8]
At
this stage it needs be recorded that the respondent had a different
version of events leading up to the interdict proceedings.
In essence
he states that he only became aware of the location of the
servitudinal road around the time that he was required to
sign the
sale agreement and was immediately dissatisfied therewith.
Accordingly he raised it with the applicant with the eventual
result
that the agreement relating to the Southern road was reached. When,
in due course he began to build the Southern road an
inspector from
the Breede Valley District Municipality inspected it and asked why
the applicant could not gain access to his portion
over his own
property, to the north i.e. off divisional road 1477. In this way the
need for a servitude would be avoided. The respondent
alleges he told
the official that the applicant had told him that his application for
access from divisional road 1477 had been
rejected and he was thus
unable to gain such access. The official then advised the respondent
that he was aware of no such application.
In due course, the
respondent’s case continues, he confronted the applicant who
ultimately conceded that there had never
been any such application.
[9]
The
respondent’s case is further that he only agreed to the
servitudinal road because of the applicant’s misrepresentation
relating to access from divisional road 1477 aforesaid which was
false and therefore the respondent took the view that the applicant
was not entitled to gain access to his portion (Portion 2) using the
servitudinal road but must instead obtain access through a
road over
his own property i.e. Portion 2 at a certain point off divisional
road 1477. I shall refer to this as the ‘
Northern
road’
.
[10]
These
were the issues which came before this Court in the interdict
proceedings but which were resolved, at least partially, by
the
settlement agreement.
The Settlement
Agreement
[11]
In
terms of the settlement agreement the interdict proceedings were
postponed sine die and it was recorded that the applicant had
already
given instructions to land surveyors to apply to the relevant
government authorities for the approval of the construction
of an
access road to Portion 2 off divisional road 1477 i.e. the Northern
road, so that no servitude right of way would be necessary;
further
that in the event that the Northern road was approved the applicant
would take all steps to ensure it was constructed within
a reasonable
time but no later than 30 June 2017; that the parties would make
financial contributions to the construction costs
of the Northern
road and, should the applicant have to forfeit any part of his drying
yard for the construction of the road, the
respondent would pay
compensation to him. The agreement further provided that in the event
of it being legally impossible –
‘
wetlik
onmoontlik’
– to construct the intended Northern road, all disputes would
be referred to arbitration to be commenced as soon as possible
and to
be completed by the end of June 2017.
[12]
Certain
provisions in the settlement agreement are particularly important and
I therefore quote them in full.
‘
DIE
SKIKKINGOOREENKOMS
7. Dit word
genotuleer dat die Applikante alreeds opdrag gegee het aan
professionele landmeters om aansoek te doen by die nodige
owerhede
(namens die Applikante) vir die bou van ‘n toegangspad 6 meter
wyd vanaf die bestaande ingang op Afdelingspad 1477
na die Applikante
se koelstoor oor die Applikante se grond (‘die Noordelike
Pad’).
8. Indien
sodanige aansoek goedgekeur word sal die Applikante alle nodige
stappe neem ten einde te verseker dat die Noordelike Pad
so gou
redelikerwys moontlik voltooi en in gebruik geneem word, maar in elk
geval teen nie later as 30 Junie 2017 nie.
…
15. Met
ingebruikneming van die Noordelike Pad sal die terme van hierdie
skikking alle regte en verbintenisse deur enige ooreenkoms
van watter
aard ookal tussen die partye wat handel met enige reg van weg waarop
die Applikante oor die grondgebied van die Respondente
aanspraak
maak, vervang.
ARBITRASIE
16. Indien dit
wetlik onmoontlik is vir die Applikante om die Noordelike Pad te bou,
sal alle bestaande dispute tussen die partye
na arbitrasie verwys
word (‘die Arbitrasieverrigtinge’), soos volg:
16.1 Die
Applikante sal Arbitrasieverrigtinge … van die stapel te stuur
ten einde gepaste regshulp te eis. Die Respondente
sal geregtig wees
om enige teeneise wat hul moontlik sou wou instel, as Verweerders,
tydens genoemde verrigtinge in te stel.
17. Die
Arbitrasieverrigtinge sal so gou moontlik ingestel moet word nadat
daar vasgestel word dat die Noordelike Pad nie wettiglik
toelaatbaar
is nie en daarna afgehandel moet word indien dit enigsins prakties
moontlik is teen einde Junie 2017.’
[13]
It
was common cause between the parties that the reference to the
application relating to the ‘
Northern
road’
referred to one which would have as its point of access to divisional
Road 1477 at point 1 marked on a diagram marked FC 2 at page
40 in
the papers and which is also reflected as point B on page 108 of the
papers. On 23 November 2016 i.e. two days after the
settlement
agreement was concluded the land surveyor, Mr Hellig, duly submitted
an application to the Department of Transport and
Public Works in the
Western Cape Government (‘
the
Department’
)
for a proposed new access road from divisional Road 1477 to Portion 2
of farm 52 in Tulbagh. This was a reference to the so-called
Northern
road and the application explains that the parties had agreed to
cancel the existing registered servitude road and the
registration of
a new servitude road (i.e. the Southern road) but that the respondent
was reluctant to proceed with the registration
of a servitude road in
favour of Portion 2 for various reasons with the result that Hellig
had been instructed by the applicant
to submit an application for the
cancellation of the two previously approved servitude roads ‘
and
for a full access point at B for access to farm 52/2 Tulbagh from
divisional road 1477’
.
[14]
The
response to that application was forthcoming on 1 February 2017 when
Mr ML Watters, Chief Director: Road Networks Management
in the
Department of Transport and Public Works in the Western Cape
Government advised, that ‘
owing
to the geometry of Divisional Road 1477’
his
branch would ‘
not
approve a new access onto Farm 52/2 from Divisional Road 1477’
.
The principal reason for this decision appeared to be that access to
divisional road 1477 at the stipulated point did not comply
with the
legal requirements (apparently in terms of the Roads Ordinance 19 of
1976) for minimum road ‘
shoulder
sight distances’ (‘SSD’)
for safe access. It was common cause that this was or is a reference
to the distance which someone accessing the road from Portion
2 at
that particular point must be able to see down the road and thereby
be apprised of oncoming vehicles.
[15]
Upon
receipt of this response from the Department the applicant took up
the position that the suspensive condition contained in
clause 16 of
the settlement agreement had been fulfilled and that all disputes
between the parties could then be referred to arbitration
in terms of
clause 17. The respondent did not agree with this interpretation or
contention however. Instead he adopted the position
that the
applicant was obliged in terms of the agreement to renew his efforts
to obtain the approval of the Department to the establishment
of an
access road off divisional road 1477 even if it entailed moving the
point of access from point 1 further down the road in
order to comply
with the necessary SSD requirements To this end the respondent
even undertook to forfeit part of an orchard
belonging to him running
alongside divisional road 1477 and to allow the road reserve to be
enlarged in order that the SSD requirements
could be met. The
respondent envisages a further application or application on behalf
of the applicant, if needs be utilising these
concessions for the
approval of an access road which would eventually be a variation of
the Northern road. He ultimately sought
a power of attorney from the
applicant to make such an application on his behalf. Much was also
made by the respondent of the need
to use to a road engineer. On the
papers it was established that a further application could be made
using as an access point to
divisional road 1477 a point numbered 3
on page 108 of the record. It further emerges that having been
apprised of a possible further
application Mr Watters, on behalf of
the Department stated that it would consider same. According to him
if it satisfied the criteria
for approval for a safe access ‘
then
there is a chance of approval being granted’
but
‘
approval
must not be taken as a given if application is made’
.
[16]
In
these proceedings the applicant seeks a declaratory order to the
effect that the suspensive condition contained in para 16 of
the
court order on 21 November 2016 has been fulfilled and that the
applicants are entitled to refer the dispute/s as referred
to in para
16 to arbitration in terms of para 16.1, 17 and 18 of the court
order.
[17]
For
his part the respondent contends that the application is premature in
that the suspensive condition has not been fulfilled since
the
applicant has not exhausted all attempts to gain approval for an
access road onto/off divisional road 1477. The respondent
contends
further that the Northern road route has not become legally
impossible and it remains possible for the applicants to obtain
such
approval. It contends that the impediment is the applicant’s
refusal to cooperate by appointing consulting engineers
to do a full
and proper motivation/application or to authorise and mandate the
respondent to submit a proper and fully motivated
application on his
behalf which the respondent is fully prepared to do. The respondent
also relies on clause 27 of the agreement
which provides ‘
(b)eide
partye sal met die hoogste goeie trou optree in die uitoefening van
hulle regte, asook in die nakoming van hulle verpligtinge,
in terme
van hierdie bevel’
.
The respondent contends that the applicant had breached this clause
and had acted unreasonably and in bad faith; further that
whatever
problems there may had been in obtaining approval for the Northern
road access route have been of the applicant’s
own making.
[18]
The
two issues before the court are firstly, the proper interpretation of
the clause 16 of the settlement agreement i.e. the suspensive
condition and, secondly, whether this suspensive condition has been
fulfilled or not.
[19]
Inasmuch
as the applicant contends that the suspensive condition has been
fulfilled, clearly it bears the onus of proving this on
a balance of
probabilities.
[20]
There
are certain principles which must be observed in interpreting the
relevant provisions of the agreement not least that such
interpretation is a matter of law and fact and accordingly a matter
for the court to decide.
[1]
Divining the proper interpretation involves attributing meaning to
the words used, having regard to the context provided by reading
the
particular provisions in the light of the document as a whole as well
as the circumstances attendant upon its coming into existence.
In
determining the context (also referred to as the factual matrix) all
relevant facts and circumstances may be considered as part
thereof.
The interpretation process is objective and a sensible meaning is to
be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose of the document. The
inevitable point of departure is the language of the provision
itself, read in context and having regard to the purpose of the
provision and the background to the preparation and production
of the
document.
[21]
Against
the background of these principles the core issue is what do the
words ‘
wetlik
onmoontlik’
in the context of clause 16 of the agreement mean. Is it, broadly
speaking, as the applicant would have it, that once the specific
application referred to in the settlement agreement failed for the
reasons advanced by the Department the suspensive condition
was
fulfilled or was it, as the respondent contends, only when all
reasonable efforts by the applicant to secure that or another
point
of access off divisional road 1477 had been exhausted, a stage which
the respondent states has not been reached.
[22]
Of
cardinal importance in my view is that the agreement throughout
refers to a specific application in respect of a specific road,
(‘
die
Noordelike Pad’),
which is defined and in respect of which an instruction had already
been given to a surveyor to lodge with the relevant authorities
(see
clause 7). Clause 8 underlines this specificity with its reference to
the consequences if
that
application was approved in which event the applicant must proceed to
build the road and commence use thereof as soon as possible,
and in
any event no later than 30 June 2017. This was a mere seven months
into the future.
[23]
The
specificity of that application is underlined furthermore by the
provisions of clause 9 of the agreement which provides for
a
specified contribution by the respondent to the costs of the road. It
goes without saying that without knowing the dimensions
and location
of the road for which approval was sought it would be difficult or
haphazard to specify what an appropriate contribution
would be.
[24]
The
specificity to which I refer is also evident in the clause containing
the suspensive condition, namely, clause 16 which refers
to the
eventuality of it being legally impossible for the applicant to build
‘
die
Noordelike Pad’
(which is defined) in which event all disputes would be referred to
arbitration. Mr Stelzner sought to give weight to the fact
that
clause 16 refers to the legal impossibility of building the road ‘
te
bou’,
in effect contending that this was a different concept to that of the
specific application being refused. In my view this is not
a
persuasive consideration since para 17 makes it clear that the
concept of the proposed road not being legally permissible is
equated
with the concept and wording in para 16, namely, ‘
indien
dit wetlik onmoontlik is … om die Noordlike Pad te bou’
.
[25]
A
further important consideration is the fact that nowhere in the
settlement agreement is there any suggestion of an obligation
on the
part of the applicant to exhaust all possibility of securing approval
for an access road onto divisional road 1477. Had
this been what the
parties intended one would have expected such wording to have been
used. The significance of the absence of
such wording is heightened
(and rendered more improbable) by the respondent’s case that
even when he concluded the agreement
he was suspicious of the
applicant’s motives and good faith because of the alleged
misrepresentation by which he had been
misled earlier. It was in
these circumstances, the respondent testified, that he had insisted
upon the clause requiring the greatest
good faith. But this suggests
all the more reason to have expected that the wording drafted or
approved by the respondent’s
legal representatives would have
made it clear that the application for the approval of the envisaged
Northern road was but the
starting point of a process in which the
end point would be the exhaustion of all possible attempts to gain
approval for an access
road onto/off divisional road 1477.
[26]
What
is also noteworthy is the fact that time clearly was of the essence
in that a strict time limit was set within which approval
was to be
gained and the road built and brought into use. This militates
strongly against the notion that within a seven month
period possible
repeat applications with differing circumstances and points of access
of divisional road 1477 might be placed before
the Department if an
earlier application/s were unsuccessful and before it could be said
that a state of legal impossibility had
been reached.
[27]
It
must also be borne in mind that the suspensive condition is just
that, a reference to a future uncertain event and not a term
or
condition of the agreement which expressly or impliedly imposes
obligations on the applicant to make repeated applications until
such
time as all possible variations are exhausted. In my view it is the
respondent who is seeking to import into the agreement
conditions or
obligations which were neither intended nor agreed between the
parties. In this case it would be an obligation on
the part of the
applicant to make repeated applications until such time as all
possibility of gaining an access road off divisional
road 1477 had
been exhausted.
[28]
Mr
Stelzner argued that to give the latter interpretation to the
suspensive condition would be to give it a sensible interpretation
since the whole point of the agreement was to find a way whereby the
applicant could gain access to his own property using a right
of way
which did not pass over the respondent’s property. Not only is
this purpose not reflected in the settlement agreement
but the
argument puts the cart before the horse. The purpose of the
settlement agreement was to resolve the immediate interdict
application and in such a way that satisfied the respondent’s
desire for an alternative access road for the applicant, not
passing
over the respondent’s property, to be explored with the
Department.
[29]
The
very structure of the settlement agreement made it clear that the
parties envisaged that the application for permission for
the
Northern road might be unsuccessful in which event arbitration was to
be commenced as soon as possible. Given, amongst other
factors, the
time pressures and constraints which the parties imposed upon
themselves it would, in my view, be an insensible or
uncommercial
interpretation of clause 16 to hold that it envisaged the possibility
of multiple applications for an access road
off divisional road 1477
with potentially several new variables such as the point of access,
the removal of orchards or parts of
orchards, the changing of road
reserves and the like. Clearly such a process could involve years of
delay.
[30]
It
must also be borne in mind that from the point of view of the
applicant he already had a right of access to his property through
the servitudinal road, duly registered over the property, and on his
version he had lawfully acquired this right with the respondent’s
knowledge and consent. In this regard, without going into detail, the
allegation by the respondent that he had been unaware until
a late
stage where the servitudinal road ran is cast into serious doubt by
various communications in the papers which appear to
indicate that
well before the agreements were signed the respondent must have been
aware or, at the least, that it had been drawn
to his attention,
precisely where the servitudinal road ran.
[31]
Mr
Stelzner also sought to argue that the application submitted on 23
November 2016 to the Department was not properly motivated
and really
did no more than invite a negative response. I cannot agree with this
submission. The application was made by Mr Hellig
who appears to have
been a trusted professional and who had, earlier on, acted on behalf
of both brothers in the subdivision application.
On the face of it
the application was more than adequate.
[32]
It
appears to be common cause that the application for the approval of
the Northern road as an access road (with the point of access
established as point B) is not permissible in terms of the relevant
law or regulations by reason of non-compliance with SSD requirements.
At best for the respondent the point of access will have to be moved.
In these circumstances it is clear that the application,
in its
original and specific form, became or proved to be, legally
impossible i.e. ‘
wetlik
onmoontlik’
.
There has been no suggestion that the Department could or might waive
the SSD requirements. Inasmuch as the SSD requirements were
a legal
requirement and were not (and cannot be) met in the application for
the approval of the Northern road, that road has proved
to be
‘
legally
impossible’
to
build.
[33]
There
is no room for the argument that it is mere personal incapacity or
unwillingness on the part of the applicant to pursue further
applications for access onto divisional road 1477 rather than legal
impossibility which has frustrated the approval and building
of the
Northern road. As I have indicated the agreement makes reference to a
specific application and a specific point of access.
That application
was made and was refused for reasons which it seems to me are legally
unchallengeable, namely the SSD requirements.
No one has suggested
that the Department’s decision stands any prospect of being
successfully challenged.
Conclusion and
Order
[34]
In
the circumstances I am satisfied that the applicant has made out his
case and that the applicants are entitled to the declaratory
order
which they seek and the costs of this application.
[35]
The
following order is made:
1.
The
suspensive condition contained in paragraph 16 of the court order
that was granted in case number 21972/2016 on 21 November
2016
(annexure “FC3” to the Applicants’ founding
affidavit), has been fulfilled;
2.
The
applicants are entitled to refer the disputes, as referred to in
paragraph 16 of the court order, to arbitration in terms of
paragraphs 16.1, 17 and 18 of the court order;
3.
The
respondents are ordered to pay the costs of the application.
___________________
BOZALEK J
For the
Applicants : Adv P de B Vivier
As Instructed by
: Joubert Van Vuuren Inc
c/o
De Klerk & Van Gend
For the
Respondents : Adv R Stelzner
As Instructed by
: Muller Terblance & Beyers
c/o
VanDerSpuy Cape Town
[1]
Natal Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
SCA para 18 at
page 603.
a