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2024
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[2024] ZAFSHC 32
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Lamroo (Pty) Ltd and Others v Theron and Others (3019/2023) [2024] ZAFSHC 32 (8 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3019/2023
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
LAMROO
(PTY) LTD
1
st
Applicant
ELRICH
RUWAYNE SMITH N.O.
2
nd
Applicant
ELNA
ELSA POHL N.O.
3
rd
Applicant
and
PETRUS
ANDREAS THERON
1
st
Respondent
ESMé
THERON
2
nd
Respondent
ANY
OTHER UNLAWFUL OCCUPIERS OF THE
FARMS
KLIP PAN, HERTZOG, WATERPAN AND
UITKOMST,
DISTRICT BUILTFONTEIN, FREE STATE
PROVINCE
3
rd
Respondent
TSWELOPELE
LOCAL MUNICIPALITY
4
th
Respondent
HEARD
ON
:
05
October 2023
BEFORE:
Chesiwe, J
DELIVERED
ON:
This judgment was handed down in open court and
given out electronically by circulation to the parties’
representatives by
email. The date and time for hand-down is deemed
to be at 16h00 on 08 February 2024.
[1]
This is an application in which the Applicants
seek an order against the First, Second and Third Respondents to
vacate the farms
within 20 days period.
[2]
Part A of the Notice of Motion was granted on 22
June 2023. The parties are before Court for Part B and the matter is
opposed by
the First, Second and Third Respondents.
[3]
The relief sought in Part B is set out in detail
in the Notice of Motion (Application for Eviction).
[4]
The matter came before me for arguments on 5
October 2023 and I reserved judgment.
[5]
The dispute involves four farm lands, namely:
a)
Portion 1 (Hou Moed) of the farm Waterpan 376,
registration division Bultfontein, Free State Province;
b)
The farm, Hertzog 44 registration division
Bultfontein Free State Province;
c)
Farm Klip Pan 247, registration division
Bultfontein Free State Province;
d)
Portion 2 (Mariasrust) of the farm Uitkomst l13,
registration Division Thuinessen, Free State Province.
[6]
For purposes of this judgment, the properties
referred to above, will hereafter be referred to as “the
farms”.
BACKGROUND
[7]
The farms were previously owned by Phillipus
Abraham De Bruyn. The said Phillipus Abraham De Bruyn was
sequestrated and the Second
and Third Applicants were appointed as
the trustees of the insolvent estate.
[8]
The Second and Third Applicants in terms of the
Insolvency Act, had the duty to collect the assets in the insolvent
estate and distribute
the proceeds among the creditors, in order of
preference as set out in the
Insolvency Act 24 of 1936
.
[9]
The Second and Third Applicant put the farms up
for auction on 8 March 2022. The farms were put up for auction
subject to a lease
agreement. The bid in respect of the farms was too
little and the farms were put up for auction on the same day without
a lease
agreement.
[10]
On 18 March 2022, the deponent of the founding
affidavit, on behalf of the First Applicant signed an offer to
purchase for an amount
of R10 255 000,00 plus VAT. The offer to
purchase was accepted by the Second and Third Applicants on 23 March
2022.
[11]
At the time of the auction, an offer to purchase
was concluded. The First, Second and Third Respondents were occupying
the farm.
The Applicants concluded that after the registration of
transfer into the names of the First Applicant, the First Applicant
would
take up occupation of the farms on date of registration and the
First to Third Respondents would vacate the farms.
[12]
On
5 April 2022, the First Applicant’s attorneys of record served
a letter on First Respondent that he was in unlawful occupation
of
the farm and was required to vacate within 14 days from date of the
letter.
[1]
Despite the
aforesaid letters, the First, Second and Third Respondent failed
and/or refused to vacate the farms.
[13]
On 17 April 2023, the deponent of the founding
affidavit, personally contacted the First Respondent telephonically
to enquire when
he would vacate the farms. According to the deponent,
the First Respondent gave an undertaking to vacate the farms on
condition
that the rouwkoop amount is repaid.
[14]
The issue for determination is whether the First
to
Third
Respondents are in unlawful occupation of the
farms in light of a lease agreement, that the First and Second
Respondents allege
has not been cancelled; whether the farms were
sold without a lease agreement and whether the bid for selling the
farms was higher
than the outstanding mortgage value.
[15]
Counsel on behalf of the First Applicant, Adv.
Els, submitted in oral arguments as well as written arguments that it
is not in dispute
that the First Applicant is the registered owner of
the farms and has the necessary
locus
standi
to institute the application;
that the First to Third Respondents are in unlawful occupation and
that the Respondents’ defense
of a long term lease agreement is
not a valid ground as the mortgage bond registered over the property
brought the lease agreement
to an end. It was further submitted that
there are currently workers on the farms, but the workers will remain
until the necessary
legal steps will be taken against the workers.
Further that the eviction is only applicable to the First and Second
Respondents.
[16]
Counsel on behalf of the First, Second and Third
Respondents, Adv. van Staden, submitted in both oral and written
arguments that
the Respondents have a real right to stay on the farms
as the First and Second Respondents have a lease agreement with the
previous
owner, Mr. De Bruyn, who was sequestrated. Counsel submitted
that the Respondents made an offer to buy the farms, but their offer
was rejected by the Applicants as the amount offered by the
Respondents was lesser than the mortgage bond. It was further
submitted
by Counsel that the farms were sold without the lease
agreement even though the lease contract was not cancelled. Counsel
further
submitted that Applicants did not comply with
Rule 41
A that
parties are to mediate their dispute and that there are four farms,
of which the Respondents only reside on one of these
(Hertzog) and
should therefore be allowed to occupy until the lease contract runs
out.
[17]
The First Respondent filed a supplementary
affidavit to his opposing affidavit without leave from the Court. The
deponents to the
founding affidavit also filed a replying affidavit
to the supplementary affidavit. Counsel for the Applicant submitted
that the
Court ought to
pro-non scripto
and should not disregard the supplementary
opposing affidavit and if the Court allows it, so should the replying
to the supplementary
affidavit of the Applicant be accepted.
Counsel
for the Respondent submitted that the supplementary affidavit to the
opposing affidavit be admitted as the supplementary
affidavit was
meant to clear issues that were not canvassed in the opposing
affidavit.
[18]
A party seeking to introduce further affidavits in
motion proceedings is seeking indulgence from the Court. It is trite
that motion
proceedings only allow founding affidavit, opposing
affidavit and replying affidavit.
[19]
Rule 6(5)(e) of the Uniform Rules of Court clearly
states that the Court has a discretion whether to allow further
affidavits or
not. The Court could only exercise its discretion only
when an application to file further affidavits had been launched.
In
Ndlebe
v Budget Insurance Limited
[2]
,
it was held that:
“
It
is upon the litigant who seeks to file further affidavits to provide
an explanation to the satisfaction of the Court that it
was not
malicious in its endeavor to file further affidavit and that the
other party will not be prejudiced thereby.”
[20]
In my view, the First Respondent gave a clear
explanation that the supplementary opposing affidavit was to clear
issues and the
Applicant has already filed its replying affidavit. It
would thus be fair to both parties and as the matter involves an
eviction
of the Respondents that the court allow both sets of
affidavits. It would therefore be in the interests of justice that
both supplementary
affidavits are admitted as not to prejudice either
party.
[21]
Now turning to the eviction application, the First
Applicant’s contention in the founding affidavit is that he
bought the
farms at an auction on 8 March 2022. The farms were put up
for auction subject to a lease agreement. The bid for the farms was
too little and the farms were put up for auction without the lease
agreement. On 18 March 2022, the Applicants signed an offer to
purchase the farms for an amount of R10 255 000, 00. The offer was
accepted and subsequent, the farms were transferred to the name
of
the First Applicant
.
HUUR
GAAT VOOR KOOP
[22]
The First and Second Respondents contend that by
virtue of the Roman Dutch Law principle of “huur gaat voor
koop” that
the First Applicant is bound by the long lease
agreement between the predecessor Phillipus Abraham De Bruyn and the
Respondents.
[23]
The Principle of “huur gaat voor koop”
dictates that regardless of whether a lease agreement in respect of
property
which is sold in terms of a written or tacit agreement, the
lease agreement supersede the sale of the property. This simply means
the new owner of the property is not entitled to cancel the agreement
based solely on the new ownership.
[24]
The
new owner will be bound by the material terms of the lease agreement.
This principle is applied
ex
lege
and
it is for this reason the purchaser will step into the shoes of the
landlord.
[3]
The
Rental
Housing Act 50 of 1999
section,
[4]
provides that the landlord is entitled to cancel the lease
agreement on condition that the leased agreement specify cancellation
and also if the cancellation constitute unfair practices.
[25]
In
Pizani
and Another v First Consolidated Holdings (Pty) Ltd
[5]
,
the Court held that:
“
Appellant
had by operation of law stepped into the shoes of the lessor and that
upon transfer the relationship continued between
the appellant and
the lessee without the necessity of a formal cession of rights.”
[26]
If a leased property is leased subject to a prior
real right such as a mortgage bond registered before the lease was
concluded,
then such right may trump the “huur gaat voor koop”
rule.
[27]
This is in circumstances where the property is put
up for auction in the execution process subject to the lease, but if
the highest
bid is not enough to cover the outstanding debt owed to
the bank, the bank may insist that the property be auctioned free of
the
lease.
[28]
The First Applicant stated in the founding
affidavit that:
“
If
however the property encumbered by a pre-existing real right, in
other words, if a mortgage bond was registered over the property
before the lease agreement was entered into the property, must still
be sold subject to the lease agreement, but if the proceeds
of such
sale are insufficient to repay the mortgage’s claim against the
insolvent estate, the lease agreement shall automatically
terminate
and the property is sold without the lease agreement being applicable
thereto i.e. free from the lease.”
(See para 15 of the offer to
purchase)
[29]
The First Respondent contention in the
supplementary opposing affidavit that the farms were not to sold in
terms of 2 court orders
dated 19 February 2021 and 19 April 2021, due
to the legally binding lease agreement including the defense of “huur
gaat
voor koop” is misconstrued as the First Respondent
understood that the property will only be sold subject to the lease
agreement
if the proceeds of the sale are sufficient to repay the
mortgage claim. The farms were put up for auction subject to the
lease
agreement, but were not sold for an amount sufficient to repay
the amount due to Suidwes and were thus auctioned without the lease
agreement.
[30]
The
issue of the lease agreement was addressed by the Master of the High
Court in a correspondence dated 8 February 2021,
[6]
that:
“
Toestemming
word in terme van artikel 18(3) saamgelees met artikel 80(bis) van
die Insolvensiewet, wet 24 van 1936, soos gewysig
verleeen, dat die
volgende bates voor die plaasvind van die tweede vergadering per
publieke veiling verkoop kan word: …
onderworpe aan die
voorwaarde dat sou iemand ʼn voorkeurreg of die bates het daardie
person ook toestemming verleen het tot
die verkoping van die bates.”
[31]
The
First Respondent may have a real right to occupy the farms in terms
the lease agreement. However, the First Respondent’s
offer to
buy the farms was rejected as the amount was insufficient. Thus, the
First Applicant as the new owner has the real right
to be enforced
against the Respondents to claim or repossess the properties that
were leased. So, the Respondents’ rights
to occupy the farms in
terms of the lease is not an absolute right.
[7]
[32]
In
United
Building Society Ltd and Another N.O v Du Plessis,
[8]
the following was said:
“…
should
the property be put up for sale, either in execution or by the
trustee in insolvency, the question is whether the highest
bid or
offer would suffice to cover the amount of the mortgage bond or not.
If the price does cover the amount of the mortgage
debt, then the
property will be sold subject to the lease,
but
if that price does not suffice to cover the mortgage debt, then the
property will be sold free of the lease, the lease thereby
coming to
an end
.”
[33]
In this instance, the Respondents’ offer was
rejected as it did not cover the mortgage debt. Thus, the farms were
sold free
of a lease agreement.
The defense as raised by
the First Respondent of “huur gaat voor koop” can
therefore not stand and the Respondents are
therefore in unlawful
occupation and ought to vacate the farms.
[34]
It is further noted, the court order of 19 April
2021 which ordered as follows:
“
4.
The relief granted in terms of paragraph 2, shall automatically lapse
in the event the creditors in the insolvent estate of Phillipus
Abraham De Bruyn, which estate is registered with the Master of the
High Court under estate reference B35/2020, resolved at the
second
meeting of creditors that the farms listed in paragraph 2.1 to 2.4
are to be sold.”
[35]
The trustees being the Second and Third Applicants
filed confirmatory affidavits, confirming the contents of the
founding affidavit
of the Applicant specifically with reference to
para 11.4 to 11.5 which details the duties and responsibilities of
the trustees
and furthermore the mortgagee had insisted the farms be
sold free from the lease agreement (Landbank). The bank may insist
that
the property be auctioned free from the lease, and it’s at
the bank’s discretion as in this instance, Landbank insisted
that farms be sold without lease agreement (See replying affidavit
para 10.6).
[36]
Therefore, the First Applicant is entitled to
repossess the properties that were paid for and transferred and
registered in its
name. The sale of the farms therefore terminated
the lease agreement.
[37]
The Respondents’ contention that the court
ordered that Hertzog farm cannot be sold on auction as prayer 4 of
the court order
of 19 April 2021 is clear on the sale transaction of
the farm Hertzog was an interim interdict and would lapse after the
creditor
in the insolvent estate had their second meeting.
[38]
The
Respondents raised an issue that the First Applicant failed to comply
with
Rule 41A
,
[9]
which
provides that parties are to prepare for mediation prior to
approaching court. Sub-rule (2) (a) requires the Applicant
to serve a
notice in terms of
Rule 41A
whether applicant agrees or opposes to
mediation and similarly the respondent is to file a notice stating
whether he is agreeing
or opposing that the matter be referred to
mediation.
[39]
Counsel for the First Applicant submitted in oral
argument that non-compliance with
Rule 41A
does not negate the First
Applicant’s matter and that the Respondents did not file
Rule
31A.
I am inclined to agree with Counsel for the First
Applicant that the Respondents also failed to file a 31A notice
[40]
Counsel
for the First and Second Respondent submitted that the parties are
compelled to mediate their dispute and made reference
to
Koetsioe
and Others v Minister of Defense and Military Veterans and Others
[10]
.
[41]
In
Kalagadi
Manganese (Pty) Ltd v Industrial Development Corperation of South
Africa Ltd
and
Others
[11]
,
the Court defined the mediation in terms of
Rule 41A
as a voluntary
non-binding prescriptive dispute resolution.
[42]
Given that
Rule 41(A)
mediation must be voluntary
to be effective and to assist in resolving disputes speedily.
However,
Rule 41
A does not change the nature of mediation nor
force an unwilling party to participate. It is obligatory in the
sense that parties
are to consider mediation. The purpose of
Rule 41A
is to
expedito
resolution
in a dispute and to alleviate the courts’ case load and is
beneficial to parties. However, it does not compel or
force the
parties to attend mediation. An unwilling party to a mediation
process would render the process useless.
[43]
Therefore, the Applicants unwillingness to
mediate, does not take away the right to approach court to litigate
the matter. The Respondents
in raising non-compliance with
rule 41A
,
should have also filed a
Rule 30
notice, but failed to do so.
Furthermore, in terms of
Rule 41A
(3)(b), a Judge, or a Case
Management Judge cannot force the parties to mediate, but may direct
the parties to consider mediation
at any given point before the
judgment, however mediation cannot be imposed or forced unto the
litigants.
[44]
In
Nomandela
and Another v Nyandeni Local Municipality and Others,
[12]
the Court held that the applicant’s failure to comply
with
Rule 41A
did not justify striking off the matter from the roll
and proceeded with the matter.
[45]
As mediation is a voluntary process, this Court
would not have imposed it on the parties and further that there was
no reason for
this court to dismissed the matter based on
non-compliance with
Rule 41A.
COSTS
[46]
The general rule is that costs follow the even.
The First Applicant prayed for punitive costs on an attorney and
client scale and
the First and the Second Respondent prayed for the
application to be dismissed with costs.
[47]
Referring back to the mediation issue, had the
Applicants complied with
Rule 41A
notice, the litigation costs would
have been lesser as the lack of mediation would have saved the
parties unnecessary legally costs.
That is, the costs of the
application might have been avoided had the parties gone for
mediation. In my view there is no case made
out for punitive costs
against the First and Second Respondent. And indeed, had the parties
attended mediation, litigation costs
would not be exuberant. Thus,
costs should be that each party pay its own costs.
ORDER
[48]
Accordingly, the following is ordered:
1.
The First to Third Respondents are declared
unlawful occupiers of the properties knows as:
1.1
Portion 1 (Hou Moed) of the farm Waterpan 376,
registration division Bultfontein, Free State Province;
1.2
The farm Hertzog 44, registration division
Bultfontein, Free State Province;
1.3
Remaining extent of the farm Klip Pan 247,
registration division Bultfontein, Free State Province;
1.4
Portion 2 (Mariasrust) of the farm Uitkomst 13,
registration division Theunissen, Free State Province.
2.
The First to Third Respondents are to vacate the
following properties within 60 days from date of service of this
order:
2.1
Portion 1 (Hou Moed) of the farm Waterpan 376,
registration division Bultfontein, Free State Province;
2.2
The farm Hertzog 44, registration division
Bultfontein, Free State Province;
2.3
Remaining extent of the farm Klip Pan 247,
registration division Bultfontein, Free State Province;
2.4
Portion 2 (Mariasrust) of the farm Uitkomst 13,
registration division Theunissen, Free State Province.
3.
The sheriff of the Honourable Court is authorized
and directed to evict the First to Third Respondents from the
properties described
in paragraph 2 above in the event of the First
to Third Respondents failing to comply with paragraph 2 above.
4.
The sheriff of the Honourable Court is authorized
to obtain the aid of the South African Police Service in the event of
him/her
not being able to evict the First to Third Respondents from
the properties mentioned in paragraph 2 above.
5.
The First to Third Respondents are directed to
remove their movable property and personal belongings from the
properties in paragraph
2 above within 60 days from the date of
service of this order.
6.
Costs on a party and party scale.
Chesiwe,
J
On
behalf of the Applicants:
Adv
J. Els
Instructed
by:
Phatsoane
Henney Inc.
BLOMFONTEIN
On
behalf of the Respondents:
Adv.
van Staden
Instructed
by:
Van
Schalkwyk & Partners
BLOMFONTEIN
[1]
(Annexure
FA 8.1 FA 8.2)
[2]
(7457/2017)
[2019] ZAGPJHC 320 (22 February 2019) at para [7]
[3]
(See
Mignoel Properties (Pty) Ltd v Kneebone 219/88[1989] ZASCA 110 (22
September 1989)
[4]
Section
4(5)(c)
[5]
1979
(1) SA 69 (A)
[6]
First
Respondent’s supplementary opposing affidavit
[7]
(See
Maphango and Another v Aengus Lifestyle Properties (Pty) Ltd
2011
(5) SA 19
SCA at para [21])
[8]
1990
(3) SA 75
(W) at 80 E
[9]
Erasmus
Superior Court Practice
[10]
(12096/2021)
[2021] ZAGPPHC 203 (6 April 2021)
[11]
(2020/12468)
[2021] ZAGPJHC 127 (22 July 2021)
[12]
2021
(5) SA 619
(ECM)