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[2023] ZAFSHC 5
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Albertse N.O and Others v Nelesco 91 (Pty) Ltd (1096/2022) [2023] ZAFSHC 5 (13 January 2023)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 1096/2022
In
the matter between:
LEVINA
FRANCINA ALBERTSE
N.O
1
st
Applicant
NELMARI
ALBERTSE OOSTHYSEN N.O
2
nd
Applicant
JACO
ALBERTSE
N.O
3
rd
Applicant
and
NELESCO
91 (PTY) LTD
Respondent
BEFORE
:
CHESIWE, J
DATE
RESERVED
:
18 AUGUST 2022
DELIVERED ON
:
This judgment was handed electronically by circulation to the
parties’ representatives by email.
The date and time for
hand-down is deemed to be at 12h00 on 13 January 2023.
[1]
This is a motion application in which the applicants seek a
declaratory
order that the Lease
Agreement was terminated on 31 January 2022. The application is
opposed by the Respondent.
[2]
The prayers sought are as follows:
“
1.
A declaratory order that the Lease Agreement appended to the founding
affidavit as
Annexure ‘A4’
terminated on 31 January 2022;
2.
A declaratory order that
the Respondent’s occupation, after 31 January 2022
of Portion 7
(a portion of Portion 6) of the Farm A[...] 2[...], District
Bloemfontein, Free State Province held under Deed of
Transport
T24612/2007 (‘the property’) is unlawful;
3.
An order evicting the
Respondent and/or any person and/or entity occupying the property
unlawfully as at date of the order from the premises within 14
(Fourteen) days failing which the sheriff within whose jurisdiction
the property falls is mandated and instructed to evict the Respondent
or any such third party and/or persons from the property
with the
assistance of the South African Police Service if needed;
4.
That the Respondent pays the costs of this application and any
subsequent eviction
costs on a scale as between attorney and client.”
BACKGROUND
[3]
The Albrmax Trust being the registered owner of a portion of the Farm
A[...] 2[...] District Bloemfontein Free State Province entered into
a Lease Agreement with Nelesco 91 (Pty) Ltd, a duly incorporated
in
terms of the Company Laws of the Republic of South Africa with
registration number 2[...] for several years in terms of previous
Lease Agreement. The Lease Agreement was renewed with consent of
Albrmax on or about 1 March 2017.
[4]
In terms of the Lease Agreement, Nelesco has a right of first refusal
for a period commencing on the day on which the Lease Agreement
commenced. The right of first refusal expired seven (7) days after
termination of the Lease Agreement, which is 8 February 2022.
[5]
On 4 October 2021, the Applicants’ legal representative
directed
a letter to Nelesco’s attorneys that the Applicants do
not intend to renew the Lease Agreement. On 13 December 2021, a
second
letter was communicated on the termination of the Lease
Agreement by way of effluxion of time as provided in the agreement.
[6]
The Nelesco ( The Respondent) through its attorneys responded that it
heard from undisclosed sources that a Gert Snyman would be the new
operator on the premises, which allegation was denied by the
Applicants.
[7]
Counsel on behalf of the Applicants, Adv. De Jager submitted in oral
argument
that clause 4 of the Lease Agreement is the crux of this
matter and that the Respondent’s allegation that a Gert Snyman
informed
employees of the Respondent that it will be the new tenant
is absurd as it was a mere allegation. Counsel further submitted that
the Respondent has to show that there was a new tenant for clause 4
to be implemented. Counsel stated that the Court is to grant
the
declaratory order in favour of the Applicants.
[8]
Counsel on behalf of the Respondent, Adv. Snellenberg SC, submitted
in
oral argument that there are factual disputes as well as material
disputes and that these disputes cannot be addressed in motion
proceedings. Counsel indicated that the issue of Mr Gert Snyman
cannot be dealt with on the papers as he’d need to be put
under
cross-examination. Counsel further submitted that there is a pending
review application before Court. Counsel indicated that
the
Respondent raised points in
limine,
namely non-joinder of the
Ancor Family Trust and the Applicants’
locus standi
.
[9]
I will deal with the point in
limine
first.
NON-JOINDER
[10]
Uniform
Rule 10(3) deals with who should be joined or cited as
applicant/respondent – plaintiff/defendant. In
Judicial
Services Commission and Another v Cape Bar Council and Another,
[1]
the Court held as follows:
“
It
has now become settled law that the joinder of a party is only
required as a matter of necessity – as opposed to a matter
of
convenience - if that party has a direct and substantial
interests which may be affected prejudicially by the judgment
of the
court in the proceedings concerned.”
[11]
In
Fluxmans
Incorporated v Lithos Corporation of South Africa (Pty) Ltd and
Another,
[2]
the Court held the view stating that:
“
parties
may only be joined as matter of necessity and not convenience. It is
only necessary if the parties sought to be joined would
be
prejudicially affected by the judgment of the court in the
proceedings.”
[12]
The Respondent in the replying affidavit contends that a portion of
the Farm A[...] 2[...],
forms part of the fuel station which portion
is erected on Ancor Trust. The issue of the Anchor Trust is a pending
review matter
under case number 2452/2019. In that pending
application, Ancor Trust has demanded that its property be restored
to it (the strip).
[13]
The Applicants in their replying affidavit denied that the strip of
the land belongs to
Ancor Trust and Anchor Trust has no direct and
substantial interest in the relief sought in the current application.
[14]
In
Amalgamated
Engineering Union v Minister of Labour
[3]
,
Fagan AJA held that the Court would not determine issues in which a
third party may have a direct and substantial interest without
being
satisfied that the rights of such a party will be prejudicially
affected by its judgment.
[15]
Indeed, Ancor Trust may have a direct and substantial interest to be
joined in this matter.
It is difficult at this stage to determine
whether Ancor Trust has a direct or substantial interest as the
parties, that is Albrmax
& Ancor Family Trust, are currently
involved in another pending review matter to determine ownership of
the strip of land.
[16]
In the Respondent’s replying affidavit, the following is noted
in respect of Ancor:
“
7.5
ANCOR Trust has demanded that its property be restored to it and the
respondent’s occupation on the ANCOR Trust property
is with the
aforesaid Trust consent.
7.6
The portion that the applicant’s (sic) refers to as being the
‘Strip’, is the portion of the property that
belongs to
the ANCOR Trust and this was not possessed/occupied by the applicants
and their predecessors, as if owner for a period
of 30 years, and the
occupation and/or possession was not exercised openly as envisaged by
the provisions of Act 68 of 1969.”
[17]
The mention of the ANCOR Trust in the papers and that there is
a dispute that involves this Trust, does result in the Trust having
a
direct and substantial interest.
For the mere
fact that Nelesco conducts a filling station business on portion 7,
known as the strip.
[18]
Harms
[4]
dealt with direct and substantial interest and stated the following:
“
a)
If a party has direct and substantial interest in any order the court
might make in the proceedings, or if such order cannot
be sustained
or carried into effect without prejudicing that party, he is a
necessary party and should be joined in the proceedings
unless the
court is satisfied that he has waived his rights to be joined.
b)
The mere fact that a party may have an interest in the right, outcome
of the litigation does warrant a non-joinder objection.
c)
The term “direct and substantial interest” means and
interest in the right which is the subject-matter of the litigation
and not merely an indirect financial interest in the litigation.
d)
An academic interest is not sufficient. On the other hand, the
joinder of joint wrongdoers as defendants is not necessary, although
advisable.
e)
… .
f)
A mere interest is also insufficient. A litigation funder may be
directly liable for costs and may be joined as a co-litigant
in the
funded litigation. This would be the case where the funder exercises
a level of control over the litigation or stands to
benefit from
litigation.”
[19]
ANCOR Trust is currently a subject matter of a review application. It
therefore does have
direct and substantial interest in the matter as
the order, if granted will affect portion 7 of the part where the
Respondent (Nelesco)
conducts its business.
[20]
In my view, ANCOR Trust ought to have been joined as a party to these
proceedings. Therefore,
the non-joinder application ought to succeed.
LOCUS
STANDI
[21]
The Respondent’s second point in
limine
is that of
locus
standi
of the Applicants.
[22]
The general
requirements for
locus
standi
are that a party must have adequate interests in the subject matter
of the litigation, that interest must not be too remote, that
the
interest must be actual and it must not be abstract and must be
current interest.
[5]
[23]
In
Mars
Incorporated v Candy World (Pty) Ltd
[6]
,
the Court said the following:
“
In
accordance with the general rule that it is for the party instituting
proceedings to allege and prove that it has locus standi,
the onus of
establishing that issue rests upon the applicant.”
[24]
The
Applicants’ founding affidavit does not establish
locus
standi
,
except stating that they are duly appointed as trustees of Albrmax
Trust. In the replying affidavit, the deponent states that
he is the
duly authorised Trustee of the Albrmax Trust. It is trite that in
motion proceedings, the applicant must establish
locus
standi
in the founding affidavit and not in the replying affidavit.
[7]
[25]
The Applicants contend that the Letters of Authority attached as
Annexure ‘A2’
to the founding affidavit and read
with the Albrmax Trust Deed confirmed the necessary
locus standi
.
Bearing in mind that one of the Trustees, Mr. Frederik Jacobus
Albertse has passed on. The Applicants are therefore required to
establish
locus standi
in their founding affidavit as well as
the number of trustees. That is the requirement for the existence of
the trust. All these
must be established in the founding affidavit,
including dealing with the Albrmax Trust Deed in their founding
papers and not in
the replying affidavit.
[26]
Thus
locus standi
is indeed an issue that needs to be
determined before the merits and the
party
alleging
locus standi
must do so in the founding papers. The
Applicants failed to establish their
locus standi
. Having
attached papers in the replying affidavit makes it difficult for the
Respondent as it cannot reply after the filing of
a reply by the
Respondent, unless this is with the leave of the Court.
[27]
The Respondent’s second point in
limine
therefore ought
to succeed.
MOTION
PROCEEDINGS
[28]
It is trite that an applicant in motion proceedings must make out his
or her case and produce
all the evidence to use in support of his or
her affidavit that is filed with the notice of motion and is not
permitted to supplement
it in the replying affidavit nor make out a
new case in the replying affidavit.
(See Minister of Land Affairs
and Agriculture & others v Daf Wevel Trust & others,
2008 (2)
SA 184
(SCA at 200 C-E)
[29]
In
National
Director of Public Prosecutions v Zuma,
[8]
Harms DP stated that motion proceedings were designed for the
resolution of legal disputes based on the common cause facts.
Disputes do arise in motion application whether minor or substantial,
as a result the Uniform Rules guide in order to determine
the facts
upon which disputes of fact are determined and/or whether the matter
is to be referred to oral evidence or trial.
[30]
Counsel for the Respondent submitted in oral argument that the
Applicants proceeded with
motion proceedings knowing that a dispute
of fact existed and could reasonably foresee that a dispute of facts
exist. Counsel further
submitted that the version of the Respondent
does not consist of bold or uncredited worthy denials. Counsel
indicated that the
Applicants are engaging in trial by ambush.
[31]
Counsel for the Applicants submitted that the papers are sufficient
for this court to formulate
judgment in that it is not necessary for
any oral evidence.
[32]
The Applicants’ founding affidavit is based on clause 4.1 and
4.2 of the Lease Agreement,
(page 40) which reads as follows:
“
4.1
Die verhuurder onderneem om indien hy die verhuurder perseel vir ʼn
verders termyn wil verhuur ná die verstrykingsdatum,
hy die
verhuurder perseel eerste aan die Huurder te huur sal aanbied,
onderworpe daaraan dat die Huurder stiptelik sy verpligtinge
in terme
van hierindie ooreenkoms vir die volle duur van die ooreenkoms
nagekom het, en het die Huurder die reg van eerste weiering
ten
opsigte van sodanige aanbod.
4.2
Indien die Verhuurder ʼn aanbod ontvang van enige ander persoon
as die huurder om die verhuurder perseel te huur onderneem
die
Verhuurder om, alvorens hy sodanige aanbod al aanvaar, die Verhuurde
perseel aan die Huurder te huur aan te bled teen dieselfde
terme en
voorwaardes as die aanbod van sodanige ander person, welke
onderneming slegs geld vir die duur van
hierdie ooreenkoms en ʼn
periode van 7 (SEWE) dae ná die verstrykingsdatum.”
[33]
The
Respondent in the answering affidavit stated that the Applicants
breached the Lease Agreement in that a Mr Snyman informed Mr
La
Grange, Mr. Grobler and Mr Johnson (all 3 having submitted
confirmatory affidavits to the effect)
[9]
that:
“
the
Respondent must be ‘out of the premises’ by 1 February
2022 because he would henceforth be conducting the business
from the
premises.
This
allegation is vehemently denied by Mr Snyman who submitted his
confirmatory affidavit which is attached to the founding affidavit.
[34]
The following is noted in Mr Snyman’s confirmatory affidavit:
“
10.
The only occasion that I can recall having visited the said leased
premises in the recent past was when I incidentally noticed
a tanker
truck on the said premises which carried a tank belonging to one of
the longstanding clients of a retailer in our supply
network (as
wholesaler, a licenced wholesaler supplies to retailers or bulk
end-users of fuel only.)
11.
In the circumstances, I was curious as to the tanker truck’s
intention and investigated for myself. It was on this occasion
that I
might have communicated with either one or more of the three
gentlemen referred above. At no stage whatsoever did I inquire
about
their intentions to vacate the premises, for the simple reason that
it was none of my business. I also had no personal knowledge
of the
contractual relationship between the landlord and its tenants. I
simply had no interest in the subject matter.”
[35]
Indeed, as correctly stated by Counsel for the Respondent, there are
factual disputes which
the Applicant was aware of. The Court cannot
ignore the allegations raised against the Applicant about Mr. Snyman.
The question
is whether the three (3) gentlemen perjure themselves to
confirm what Mr. Snyman told them. Furthermore, Mr Snyman visitation
to
the premises with the late Mr Albertse and indicating that they
were friends, is not in the founding affidavit, as a consequence
of
that, the Respondent could not reply to such an allegation.
[36]
The Applicants having foresaw that a dispute exists in terms of the
Lease Agreement, as
well as what was said by Mr Snyman should not
have proceeded with motion proceedings.
CONCLUSION
[37]
In my view, there are several aspects that cannot be cleared on the
papers, particularly
the issue of Mr Snyman which may need to be
cross-examined, including the three (3) gentlemen who confirmed under
oath what Mr
Snyman told them. This can only be done in oral
evidence.
[38]
Further that there exists a dispute between the parties. The question
being, is Mr Snyman
the new tenant and if the Applicants did not
breach the Lease Agreement. The disputes pertain to the very issue
that has its foundations
in the Lease Agreement. It is clear that
this court is precluded from properly deciding the application on the
affidavits.
[39]
Rule 6(5) g of the Uniform Rules of Court provides that:
“
Where
an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as to it deems
fit with a
view to ensuring a just expeditious decision. In particular, but
without affecting the generality of the aforegoing,
it may direct
that oral evidence be heard on specified issues with a view to
resolving any dispute of fact and to that end may
order any deponent
to appear personally or grant leave for such deponent or any other
person to be subpoenaed to appear to be examined
and cross-examined
as a witness or it may refer the matter to trial with the appropriate
directions as to pleadings or definition
of issues, or otherwise.”
[40]
It is trite
therefore that a final order may only be granted in this application
if the facts averred in the Applicants’ affidavit
have been
admitted by the
Respondent.
[10]
There
is no question that the alleged facts raised by the Respondent are
real genuine and/or
bona
fide
disputes of fact.
[41]
In
Mahomed
v Malk,
[11]
the Court said the following:
“…
it
seems to me that the court should apply the well-known rule of
procedure that questions of credibility should not be decided
on
affidavit…”
[42]
Therefore, to have this matter expeditiously resolved it would be
just and equitable that
it be referred for oral evidence rather than
dismissing the whole application. In terms of Rule 6(5), the court
has a wide discretion
regarding referring matters for oral evidence,
if an application to refer a matter for oral evidence should be made
at the outset.
However, in certain circumstances, the court may
decide that a matter should be referred for oral evidence even where
no such application
had been made.
(See Pahad Shipping CC v
Commissioner for the South African Revenue Services
[2010] 2 ALL SA
246
(SCA) at para 20)
[43]
After consideration of the papers and the submissions made, I am
convinced that the disputes
in this matter and in the interest of
justice, the matter be referred to trial.
COSTS
[44]
The Respondent succeeded in the points
in
limine
raised.
The Applicants were aware that the Respondent raised an existing
dispute, but still proceeded with a motion application.
Therefore, a
cost order is warranted against the Applicants.
ORDER
[45]
Accordingly, the following order is made:
1.
The Applicants’ application under
Case Number: 1096/2022
is referred to trial.
2.
The Notice of Motion in the application shall stand as the
Applicants.
3.
The Founding Affidavit shall stand as the Applicants’
particulars
of claim.
4.
The Respondent’s Answering Affidavit shall stand as the
Respondent’s
plea.
5.
The Applicants’ Replying Affidavit shall stand as the
Applicants’
replication.
6.
Further exchange of pleadings including discovery and the request for
and provision
of trial particulars shall be regulated by the Uniform
Rules of Court in respect of action proceedings. Discovery of
documents
not forming part of the application papers shall take place
in accordance with the Court Rules.
7.
The parties are granted leave to utilise Rule 28 in the event the
parties wish to amend the papers.
8.
The Applicants are to pay the Respondent the costs of the points
in
limine
including the costs of the application.
CHESIWE,
J
On
behalf of the Appellant:
Adv. NF De Jager
Instructed
by:
Phatshoane Henny Attorneys
BLOEMFONTEIN
On
behalf of the Respondent:
Adv. N Snellenburg SC
Instructed
by:
Honey Attorneys
BLOEMFONTEIN
[1]
(818/11)
[2012] ZASCA 115
(14 September 2012) at para [12]
[2]
(2011/10614)
[2014] ZAGPJHC 290;
2015 (2) SA 322
at para [5]
[3]
1949 (3) SA 637 (A)
[4]
Civil Procedure in the Superior Courts, Last Updated: February 2019
- SI 64 at B10.2 Direct and Substantial Interest.
[5]
DE van Loggerenberg and E Bertelsmann Erasmus, Superior Court
Practice 2nd ed. Vol 1 at D1-186
[6]
(265/89)
[1990] ZASCA 149
;
1991 (1) SA 567
(AD);
[1991] 2 All SA 25
(A) (28 November 1990)
[7]
Giant Concert CC v Minister of Local Government, Housing and
Traditional Affairs KwaZulu-Natal and Others,
2011 (4) SA 164
KZP at
para 16)
[8]
2009 (2) SA 277 (SCA)
[9]
(Page 90 of the Respondent’s answering affidavit)
[10]
Plascon-Evans Paints v van Riebeeck paints (Pty) Ltd 1984 (3) SA 623
(A).
[11]
1930 TPD 615
at 620