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[2023] ZAFSHC 48
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Elmasdal Boerdery (Pty) Ltd and Another v Erasmus and Others (5196/2022) [2023] ZAFSHC 48 (15 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 5196/2022
Reportable:
YES
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
ELMASDAL
BOERDERY (PTY)
LTD
First Applicant
(Registration
No.: 1975/004577/07)
PETRUS
PAULUS SCOTT
N.O.
Second Applicant
(In
his capacity as a Trustee for the
Die
PP SCOTT FAMILIE TRUST,
IT
1890/99)
and
ALBERTUS
JOHANNES
ERAMUS
First Respondent
OSHER
LANDBOU (PTY)
LTD
Second Respondent
THE
REGISTRAR OF DEEDS, BLOEMFONTEIN
Third Respondent
ETIENNE
VISSER
ATTORNEYS
Fourth Respondent
HEARD
ON:
03 NOVEMBER 2022
CORAM:
MATHEBULA, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII on
15
FEBRUARY 2023. The date and time for hand-down is deemed to be 15
FEBRUARY 2023 at 12H00.
Introduction
and Relief Sought
[1]
On 19 October 2022, the applicants brought an application, as a
matter of urgency
and on an
ex parte
basis which was granted
when the following order was made: -
“
1.
The Applicants non-adherence to this court’s rules related to
time periods and service is condoned
and the application is heard as
an urgent application in terms of Rule 6(12).
2.
A rule nisi is hereby issued calling on the Respondents to show cause
on 17 November 2022
why, pending the final determination of an action
referred to in paragraph 3 below, an order should not be made:
2.1.
Interdicting the Third Respondent from transferring ownership of the
immovable property being,
Farm Kotzee’s Rust 197, District
Wesselbron, Free State Province, being 270,2494 hectares under Title
Deed [....] to the
Second Respondent, or anyone else, pending the
outcome of this application alternatively the action referred to in
paragraph 3
herein under.
2.2.
Directing that the costs of this application shall form part of the
costs of the action referred
to in paragraph 3 below.
3.
Directing the Applicants to institute an action within 30 days of the
granting of this order.
4.
Directing that pending the said return date the provisions of
paragraph 2.1 above shall have
interim effect.
5.
The Applicants to serve this order on the Respondents within 5 days
from date of this
order.”
[2]
Subsequent to that, the second respondent set down this application
for reconsideration
of the
ex parte
order in terms of Rule
6(12)(c) of the Uniform Rules of Court. The order sought is couched
in the following terms: -
“
1.
That the Judgment and Order that was granted by Opperman J on 19
October 2022, under case number 5196/2022,
on an
ex parte
basis,
in the absence without the knowledge of the Second Respondent, be
re-considered in terms of Rule 6(12)(c);
2.
That the Judgment and Order that was granted by Opperman J on 19
October 2022 be set aside
as part of the reconsideration process;
3.
That the Applicants’ application under case number 5196/2022 be
dismissed with costs,
inclusive the cost of two counsels, if
applicable.”
The
course of the Proceedings
[3]
The applicants issued the application on 19 October 2022. It is
common cause that
the papers were not served on any of the
respondents before it came before the duty Judge. On the said day
probably well after
business hours, Opperman J granted the order in
the absence of the respondents. Now aware of it, the
second respondent has
re-enrolled it so that this court can have
the benefit of its version. This is in keeping with an important
principle of our legal
system to wit
audi alteram partem
.
Approach
to the Adjudication of a Reconsideration Application
[4]
That this application is properly placed before court is not in
dispute. Rule 6(12)(c)
provides that a person against whom an order
was granted in his absence in an urgent application may by notice set
down the matter
for reconsideration of the order. This Rule is only
restated to reconfirm that indeed this is the case in this matter.
The dominant
purpose of the Rule is to assist the aggrieved party
against whom an order was obtained.
[5]
The question is how should the court adjudicate the matter seeing
that the applicants
in this application were the respondents when the
ex parte
order
was granted. Counsel for the second respondent placed heavy premium
on the decision of
Oosthuizen
v Mijs
.
[1]
In that matter the court held that in reconsideration matters the
court is not limited to reconsider the original application,
but
should also have regard to the facts placed before it on affidavit.
The whole matter that led to the granting of the
ex
parte
application
is considered afresh. This is a sensible approach fit for purpose.
There is no other manner to afford redress against
any imbalances or
unfairness to the party who was not there. It is to allow such a
party to put his version across to be adjudicated
in the normal way.
This is the approach that will be followed in this matter.
[6]
A party who launches any application does so supported by a founding
affidavit which
must disclose the material facts constituting a cause
of action. In an application of this nature, it is the respondents
who are
bringing it. The question is whether the applicant is
confined to the case originally made out or not. Also whether such
can be
supplemented or not.
[7]
In
Basil
Read (Pty) Ltd v Nedbank Ltd and Another
[2]
the
court held that in the reconsideration application the applicant is
not permitted to file a “supplementary affidavit to
bolster its
original application”. Plainly, the cause of action cannot be
substituted nor supplemented. This makes sense
because otherwise the
respondents will be chasing a moving target. This absurdity will lead
to unfairness. The respondent is entitled
to seek a reconsideration
on the original application.
[8]
The applicants having chosen to proceed by way of an
ex parte
application, they were duty bound to make full disclosure of all
material facts. These are those facts which might have an influence
on the court to grant or refuse the relief sought. It is trite law
that suppression of the information need not be wilful or
mala
fide
. Even negligence will qualify. Therefore, a misinformation
cannot serve as a basis of the case for the applicant. The contention
on behalf of the second respondent is that if the true facts were
before Opperman J, she would not have granted the order. The
point
made is that she was misled.
Background
[9]
This matter concerns a dispute about a sale of portions or the entire
farm known as
Kotzee’s Rust 197 situated in the district of
Wesselsbron. The farm in question is owned by the first respondent.
The first
respondent set in motion the process to subdivide the farm.
Permission was granted by the Minister of Agriculture, Land Reform
and Rural Development (“Minister”) on 4 August 2022.
There is a dispute between the parties as to what prompted this
subdivision. According to the applicants it was for the purposes of
selling portions A and C to them. This aspect is denied by
the second
respondent.
[10]
Applicants averred that as a temporary measure, the parties entered
into a written lease agreement
in July 2021. The agreement between
the first applicant and first respondent was not signed on behalf of
the former. Coming to
the second applicant, the lease agreement was
comprehensively signed on 18 July 2021. It seems that after the
application for subdivision
was granted, the first respondent signed
the sale agreement with the first applicant dated 8 September
2022. The document
purporting to be an agreement between the second
applicant and the first respondent is unsigned.
[11]
It transpired that the first and second respondent entered into a
composite agreement on/or about
13 June 2022. The parties further
signed an Addendum on 24 June 2022. The transaction was processed by
the transferring attorneys
and the deed was due to be registered
on/or about 19 October 2022. All that came to naught because the
applicants obtained the
order which is the subject of this
application for reconsideration.
Arguments
[12]
Counsel for the second applicant put forward numerous grounds
contending that the order should
be set aside. He pointed out that
the urgency alleged was self-created. There was no convincing reason
why the order was taken
without notification to the
second respondent. He argued that the applicants could have
served the papers in any other conceivable
manner. Formal service
could have been dispensed with in appropriate circumstances. He added
that in extreme cases it could be
done, but this was not such
deserving matter. This matter was not sufficiently urgent to dispense
with the requirement of service.
[13]
Counsel also referred to what he considered to be misrepresentation
of the facts in the papers.
The point made is that the true facts
were withheld with the sole purpose to mislead the court. The
applicants were aware that
the first respondent had withdrawn the
matter where he was challenging the validity and enforceability of
the agreement with the
second respondent. In their papers they
alleged the matter was removed which was not the case. This
information could not have
served as the basis for their case.
[14]
On the maxim
prior tempore potior jure
, he argued that it
finds application in this matter. The agreement between the first and
second respondents stands. All other agreements
were either voidable
or they were entered into and signed after the valid and enforceable
agreement was signed. A useful submission
made centred around the
agreements entered into by the parties. The cardinal point is that
the property referred to in the lease
agreements was not in existence
at the time the applicants and the first respondent entered into
them. Plainly, the first
respondent was incapable of transferring
more rights than he had in the circumstances.
[15]
Mr Hefer appearing for the applicants contended that Opperman J
granted the order after she was
satisfied that the requirements for
urgency and non-service to the respondents were met. He was in
agreement with the position
advanced by his opponent regarding the
filing of affidavits in applications of this nature. He extended his
point that in any event
the second respondent did not need to file an
affidavit. However, now that the second respondent has elected to do
so, then the
applicants were entitled to file the reply thereto.
[16]
He emphasized that the applicants did not mislead the court. Indeed,
the matter was removed from
the roll. According to him urgency was
argued before Opperman J and it was fruitless to reargue it. Counsel
conceded that the application
challenging validity and enforceability
of the agreements was not proceeded with. However, those rights of
the parties ie between
the applicants and the first respondent are
still to be ascertained. He pointed out that the applicants had a
prima facie
right in the form of a pre-emptive right.
[17]
Insofar as the existence of the portion as an entity is concerned, he
agreed that it did not.
However, operational steps were taken after
pre-emptive rights were granted. He referred to the maps which were
attached to the
lease agreements as an indication that positive steps
were taken to bring their transaction into fruition. All the parties
strictly
adhered to it as evidenced in the application made to the
relevant Minister for subdivision of the farm.
Discussion
[18]
A party who brings an
ex parte
application ought to realise
that it must be done under extraordinary circumstances. Therefore, a
disclosure of the material facts
is of utmost importance. That is why
there is such an onerous responsibility that failure to do so is not
only intentional, but
even through negligence it will suffice. The
purpose of the application was to prevent the transfer of the
property from the first
respondent to the second respondent. It is
worth mentioning that the applicants were not party to the
aforementioned agreement.
[19]
The applicants were aware that the first respondent had launched an
application against the second
respondent challenging the validity
and enforceability of the agreement between them. Certainly as
interested parties they should
have been appraised of the correct
information pertaining to the outcome on 18 October 2022. The matter
was not removed from the
roll, but withdrawn by the first respondent.
These are two (2) different concepts, each with its own meaning and
result.
[20]
When the applicants alleged removal of the matter from the roll, they
gave an impression that
there was still a live dispute between the
parties. The truth is there was none. There could never be any talk
about the validity
and enforceability of the agreement between the
respondents. As a consequence, there was no basis to allege the
existence of any
pending action for clarity of any rights whatsoever.
The view expressed in this judgment is that surely if this
information was
put before Opperman J, she would not have granted the
order sought. On this ground alone the aforesaid order stands to be
set aside.
[21]
There is consensus that the portions the applicants lay claim on did
not exist as separate entities
before the application for subdivision
was granted. Logic dictates that there could not be any agreement to
transfer any right
on something that was not in existence at the
time. Such rights, if any, cannot be transferred
ex
post facto
.
Any undivided share not already held by any person shall vest in any
person unless the relevant Minister consent in writing. The
law
states that no portion of agricultural land shall be sold or
advertised for sale unless the relevant Minister has consented
in
writing.
[3]
[22]
At issue is several agreements that were entered into by the parties.
The common denominator
in all these agreements is the
first respondent. The lease agreement with the first applicant
was not signed by the latter.
The sale agreement was only signed by
the parties on 8 September 2022. The lease agreement with the
second applicant was properly
signed. However, both parties did
not sign the sale agreement. The latter agreement does not comply
with the provisions of the
Alienation of Land Act 68 of 1981 (the
Act). This means that there is no proper sale agreement between them.
[23]
The case for the applicants, it seems, relies on the lease agreements
in particular the rights
of first refusal. Both counsel debated at
length the judgment of the Supreme Court of Appeal in
Four
Arrows Investment 68 (Pty) Ltd v Abigail Construction CC and
Another
[4]
.
In paragraphs 10 and 11 the court said the following: -
“
[10]
That the legislature has prohibited the advertisement of a portion of
agricultural land for sale in the absence of ministerial
consent,
clearly indicates that the object of the legislation was not only to
prohibit concluded sale agreements, but also preliminary
steps which
may be a precursor to the conclusion of a prohibited agreement of
sale. In this context the grant of an option would
clearly be a
precursor to the conclusion of a prohibited agreement of sale, at the
election of the option holder.
[11]
That an option falls within the ambit of the prohibition
contained in the Act becomes clear when its true nature is
considered:
'The
essence of an option is that it is binding on the option grantor. It
is an offer, in this case to sell property, which cannot
be revoked.
It is the option holder that has the choice whether to exercise its
right.'
In
the present context the option grantor purports to be bound to sell a
portion of agricultural land without ministerial consent,
on the
election of the option holder, contrary to the provisions of the Act.
The fact that the option may provide, as in the present
case, that
the option holder may only exercise the option after the consent of
the Minister has been obtained, matters not. In
the interim the
option grantor purports to be bound to sell a portion of agricultural
land without ministerial consent, which remains
contrary to the
provisions of the Act.”
[24]
That, in my view, simply means that the transgression of the Act
results in a nullity of a contract
relied upon. Coupled with other
reasons enunciated in the preceding paragraphs, the agreements relied
upon were void
ab initio
and of no force and effect. It must
also be added that the case for the applicants do not meet the
requirements of the interdict.
There is no
prima facie
right
as the dates of the agreements demonstrate.
[25]
The other requirement of a temporary interdict is a reasonable
apprehension of injury. This must
be established on a balance of
probabilities that injury will result. There are no objective facts
gleaned from the papers that
such injury will result on the
applicants. Similarly, the balance of convenience favours the
second respondent. The transfer
of the properties in a composite
agreement is stalled because of parties whose rights, if any, still
have to be ascertained. Clearly
if a transaction was ripe to be
registered, it means that the parties to an agreement have complied
with all requirements.
[26]
The last requirement is that of an alternative remedy. The applicants
if aggrieved that the first
respondent has breached the agreement,
can sue for damages. In that way the applicants can obtain adequate
redress in damages.
In their papers, the applicants refer to an
action still to be launched to clarify their rights. There is no such
cause of action
in our law.
Joinder
Application
[27]
The last aspect which should not detain us is the application to join
Wilhelmina Jacobs Scott
as a party to the proceedings. This
application is unopposed by any of the parties. The reason why she
was not cited in the proceedings
is well explained. In the exercise
of the discretion of the court, this application is granted.
Costs
[28]
The second respondent has been successful and there is no reason to
depart from the rule that
the losing party must pay the costs.
Order
[29]
The following order is issued: -
29.1. The
ex parte
order dated 19 October 2022 is set aside with costs.
29.2. The main
application under case number 5196/2022 is dismissed with costs.
29.3. The application for
joinder is granted.
M.A.
MATHEBULA, J
APPEARANCES:
Counsel
on behalf of the Applicants:
Advs J.J.F. Hefer SC assisted by
M.C.M. Pieterse
Instructed
by:
Pieter Skein Attorneys and Preller
Incorporated
C/O McIntyre Van Der Post
Attorneys
BLOEMFONTEIN
Counsel
on behalf of the First Respondent:
No appearance.
Counsel
on behalf of the Second Respondent:
Adv. T Strydom SC
Instructed
by:
Burden Swart & Botha Attorneys
C/O Honey Attorneys
BLOEMFONTEIN
Counsel
on behalf of the Third Respondent:
No appearance.
Counsel
on behalf of the Fourth Respondent:
No appearance.
[1]
2009 (6) SA 266
(W) at 270A.
[2]
2012 (6) SA 514
(GSJ) at para 25.
[3]
Section 3(e)(i) of the Subdivision of Agricultural Land Act 70 of
1970.
[4]
2016 (1) SA 257
(SCA).