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[2012] ZAECPEHC 29
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Vester v Fletcher ad Another (3885/2010) [2012] ZAECPEHC 29 (2 May 2012)
9
IN THE HIGH COURT OF
SOUTH AFRICA
Reportable
EASTERN CAPE, PORT
ELIZABETH
Case No: 3885/2010
In the matter between
Date Heard: 26/04/2012
Date Delivered:
02/05/2012
EBEN VERSTER
….................................................................................................
Applicant
And
MICHELE TRIXIE
FLETCHER
…...............................................................
First
Respondent
REGISTRAR OF DEEDS
…...................................................................
Second
Respondent
JUDGMENT
DAMBUZA J:
[1] This is the return
day of a
Rule Nisi
granted on 26 May 2011, in terms of which
the applicant obtained an interlocutory interdict restraining the
first respondent from
selling an immovable property known as “the
farm
Wingle Dew
No 2006
”, situated in Stutterheim
(the farm), pending institution, by the applicant, of an action for
relief based on the farm being
an asset of a partnership between the
parties, alternatively, their co-ownership of the farm,
alternatively, the applicant’s
right of pre-emption in respect
thereof. Only the first respondent opposes the application, the
second respondent has filed a “report”
in which he states
that he has no objection to the granting of the order prayed. For
that reason I shall refer to the first respondent,
simply, as “
the
respondent
”.
[2] According to the Deed
of Transfer which forms part of the record, the farm is registered in
the name of the respondent. It is
common cause that the respondent is
in the process of selling the farm; a Deed of Sale was concluded
between her and Johan Steenkamp
in November 2010, in terms of which
the farm was sold to Steenkamp.
[3] The application
stands on three legs. In the first leg, the applicant claims that the
farm is an asset of a partnership between
the parties (ie the
applicant and the respondent). In the second leg the applicant claims
that the parties are co-owners of the
farm. Thirdly, the applicant
contends that he has a right of pre-emption in respect of the farm.
[4] The respondent
disputes the existence of a partnership between herself and the
respondent; she also disputes that the farm is
an asset in the
alleged partnership. The applicant’s claim that the parties are
co-owners of the farm is also disputed. The
respondent contends that
the agreement to sell a portion of the farm, on which the applicant’s
claim to a right of pre-emption
is founded, is illegal.
The facts
[5] The background facts
to acquisition of the farm by the respondent are in dispute. The
applicant’s version, as set out
in the founding of papers, is
that in July 1999 the parties concluded an oral partnership
agreement. This partnership was aimed
at buying the farm. In terms of
the agreement the applicant would contribute R70 000,00 towards the
purchase price of the farm,
which was R90 000,00; the respondent
would contribute R20 000,00. The applicant states that because of
inexperience he never paid
attention to the details of the purchaser
as they appeared in the Deed of Sale. He never contested the absence
of a recordal that
the farm is, in fact, held by the respondent on
behalf of a partnership.
[6] On the other hand to
the respondent states that the farm was sold to her by a Mrs
Magdalena Petzer in May 1999. At that time,
the respondent was
married to Craig Fletcher. They have since divorced. Fletcher has
filed an affidavit in which he supports the
applicant’s claims
in respect of the farm. The respondent states that when she bought
the farm, her husband (Fletcher) undertook
to pay the purchase price
for the farm on her behalf. But when the purchase price had to be
paid Fletcher did not have the money;
he then offered to sell to the
applicant a certain portion of the farm for R70 000,00. It is in
these circumstances, according
to the respondent, that the R70 000,00
was paid to Fletcher. Fletcher then paid the R70 000,00 over to
the attorneys who were
attending to the transfer of the farm..
[7] A document “
V4
”
annexed to the founding papers purports to be a recordal of,
inter
alia,
the sale of a portion of the farm. It reads as follows:
“
1999-08-08
I Michele Trixie
Fletcher, I.D. 6804080102083, hereby declare that I have sold the
camps above the road of the farm Winkeldew, measuring,
121.hec to
Eben Vester, I.D 66010315022086.
If I Michele wanted to
sell my portion, Eben has first option on it and if Eben had to sell
his portion, I would have the first
option.”
It is not in dispute that
both parties signed this document. I might add that according to the
Deed of Transfer the farm was transferred
to the respondent on the
28July 1999. I can only conclude therefore that annexure V4 was drawn
and signed subsequent to transfer
of the farm to the respondent.
The law
[8] It is trite that for
the applicant to be afforded the relief of an interlocutory interdict
he must prove, on a balance of probabilities,
that
he has a
prima
facie
right
in respect of the object of the relief; that he has a reasonable
apprehension of irreparable harm to that right; that the
balance of
convenience favours the granting of the order sought and that there
is no satisfactory alternative remedy available
to the applicant.
1
These requisites must all
be satisfied for an interim interdict application to succeed.
2
It is also trite that the
approach to an application for an interim interdict is to consider
the facts set out by the applicant
in the founding affidavit,
together with any facts set out by the respondent which the applicant
cannot dispute and to consider
whether, having regard to inherent
probabilities, the applicant should obtain final relief at the
trial.
3
The facts set out by the
respondent in contradiction should then be considered, and if serious
doubt is shown on the applicant’s
case, the relief should not
be granted.
4
Against these principles
I now turn to consider whether the applicant could obtain final
relief at the trial on the evidence before
me.
The claim based on
partnership.
[9] The applicant’s
case is that in the contemplated action he intends to seek an order
dissolving the partnership between
himself and the respondent,
together with an order for equitable division of the partnership
asset (the farm). However, his allegations
regarding the partnership
are disputed as set out above.
I
therefore consider the evidence of both parties in the context of
objective documentary evidence which forms part of the record.
The
Deed of Transfer reveals that the farm was sold to the respondent by
Mrs Petzer on 19 May 1999 as alleged by the respondent.
This is prior
to the time (July 1999) when, on the applicant’s version, the
partnership was concluded. I can only conclude
that the farm was
indeed bought by the respondent on 19 May 1999. Further, I am
persuaded that the respondent never dealt with
the applicant prior to
her purchasing the farm. I am also persuaded that any purported
agreement between the parties regarding
the farm was concluded after
the respondent bought the farm. My view is that if the parties had
formed a partnership with the intention
of acquiring the farm and had
bought the farm jointly as the applicant contends, there would have
been no need for the parties
to enter into another agreement in terms
of which a portion of the same farm was sold to the applicant.
Consequently I am not persuaded
that the applicant could succeed at
trial in the claim based on the farm being a partnership asset.
Co-ownership
[10] In this regard the
plaintiff contemplates claiming (in the action) rectification of the
agreement or sale concluded between
Mrs Petzer and the applicant,
presumably to record that the farm was sold to both the applicant and
the respondent. This claim
is therefore also based on the disputed
version that the parties jointly resolved to buy the farm. For the
same reasons set out
above,
it
is improbable that the applicant will succeed in a claim based on a
joint decision by the parties to buy the farm together. Although
the
applicant does not state when the resolution to buy the farm was
taken, on the papers, this could only have been on 19 May
1999 or
prior thereto. This is disputed by the applicant. Further, again
there is no explanation as to why the parties would then
reach the
agreement recorded in annexure V4 if they had agreed to acquire the
farm as co-owners in undivided shares thereof.
[11] I agree with the
submission on behalf of the respondent that the most probable version
is the one tendered by the respondent;
in particular, that in August
1999 the respondent purported to sell to the applicant a portion of
the farm,
as
recorded in annexure V4. However, the purported sale does not take
the applicant’s case in this application any further.
[12] Firstly I have
serious doubt that annexure V4 is a valid Deed of Sale of immovable
property. Further, as submitted on behalf
of the respondent, the
purported sale is prohibited by the provisions of the Subdivision of
Agricultural Land Act, No 70 of 1979
(the Act). In annexure V4 the
respondent purports to sell to the applicant a specific portion of
the farm, measuring 121, hectares.
This would entail subdivision of
the farm. A summary of Section 3 of the Act is given by Silberberg
and Schoeman
5
as follows:
“
(a)
agricultural land may not be subdivided;
(b) no undivided share
in agricultural land “not already held by any person, shall
vest in any person”;
(c) “no part of
an undivided share in agricultural land shall vest in any person,
if such part is not already held by a person”;
(d) no long term lease
in respect of a portion of agricultural land may be entered into; and
(e) no portion of
agricultural land may be sold or advertised for sale and no right to
such portion may be sold or granted by virtue
of a long term lease or
advertised for sale or for lease;
Unless the Minister of
Agriculture has consented in writing”.
It was common cause
before me that there had been no attempt to seek the approval of the
Minister of Agriculture in respect of the
transaction envisaged in
annexure V4. It appears that when annexure V4 was drawn the parties
were oblivious to restrictions applicable
to the transaction they
sought to conclude.
[13] The following
commentary on section 3 of the Act, by Silberberg and Schoeman bears
mention:
6
“
Restriction (a)
is clear enough and requires no clarification. However, the remaining
four require some brief explanation. Section
3(b) is intended to
prevent the sole owner of agricultural land, not holding the land in
undivided shares, from transferring any
undivided share in the
ownership of the that land to another person without the Minister’s
consent first having been obtained.
Section 3(b) however, does not
prohibit the registration of a farm as a partnership asset in the
name of the partner. Upon registration
the other partner or partners
do not acquire a real right in the property, but only a personal
right against the partner in terms
of which he or she is bound to
treat the property as a partnership asset. Section 3 (c) is intended
to prevent the holder of an
undivided share in the ownership of
agricultural land from transferring a ‘portion’ of his or
her undivided share to
another without such consent. There is
nothing, however, which prevents the holder of two or more undivided
shares in the ownership
of a single piece of land from transferring
one (or more) of these shares to another, whether or not the latter
holds any share
in the ownership of such land. The intention of the
legislature was therefore to prevent uncontrolled subdivision of
agricultural
land into smaller (uneconomic) units, as well as further
division of existing undivided shares in the ownership of such land
into
smaller ‘shares’.”
7
[14] I am satisfied that
any claim of co-ownership founded on the purported sale (in terms of
annexure V4) would not succeed.
The claim based on a
right of pre-emption
[15] The contemplated
claim would also be founded on annexure V4. In this regard the
applicant’s case is that he has a right
of first refusal in
respect of a portion of the farm owned by the respondent. But the
right of first refusal contained in annexure
V4 is, itself, founded
on the validity of the purported (preceding) sale of a portion of the
farm to the applicant and parties
therefore being owners portions of
the farm and then giving each other a right of pre-emption in respect
of the portion owned by
each. As I have stated because the parties
never sought and/or obtained the required consent, the agreement as
contained in annexure
V4 is void.
[16] The applicant
therefore has failed to prove a
prima facie
right. In my view,
the applicant’s case is not merely open to doubt, as it was
submitted on his behalf by Mr Smith; it is
improbable that any action
in respect thereof will succeed. That being the case, I deem it
unnecessary to inquire into whether
the remaining pre-requisites for
an interlocutory interdict have been satisfied.
Consequently the
following order shall issue, that:
The Rule Nisi is
discharged and the applicant is ordered to pay the first
respondent’s costs of the application; such costs
shall
include the costs of 26 May 2011.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances:
For the applicant: Adv.
Smith Instructed by Roelofse Meyer INC. Central, Port Elizabeth
For the Respondent: Adv.
Nepgen Instructed by Rushmere Noach INC. Conyngham Road, Greenacres,
Port Elizabeth.
1
Coalor
(Cape) (Pty) Ltd and others v Boiler Efficiency Services.
2
Webster
v Mitchell 1948 (1) SA(W) at 1189 and Ndanti v Kgami
1948 (3) SA 27
(W)
3
Setlogelo
v Setlogelo 1914 AD 221
4
Setlogelo.
5
The
Law of Property 5
th
ed;
at 107
6
At
107
7
See
also the authorities cited at 108 of Silberberg.