Kopano Uitkyk Farming Enterprise (Pty) Ltd v National Government of the Republic of South Africa and Others (3805/2022) [2023] ZAFSHC 77 (16 March 2023)

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[2023] ZAFSHC 77
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Kopano Uitkyk Farming Enterprise (Pty) Ltd v National Government of the Republic of South Africa and Others (3805/2022) [2023] ZAFSHC 77 (16 March 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Application
number: 3805/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
KOPANO
UITKYK FARMING ENTERPRISE
(PTY)
LTD
(Registration
No:
2013/108341/07)
Applicant
And
THE
NATIONAL GOVERNMENT OF THE
REPUBLIC
OF SOUTH AFRICA
(Through
its Department of Agriculture, Land Reform
and
Rural Development, previously known known
as
the Department of Rural Development and Land
Reform)
1
st
Respondent
MINISTER
OF AGRICULTURE, LAND REFORM
AND
RURAL
DEVELOPMENT
2
nd
Respondent
MEC:
FREE STATE DEPARTMENT OF
AGRICULTURE
AND RURAL DEVELOPMENT
3
rd
Respondent
CHIEF
DIRECTOR/ACTING CHIEF DIRECTOR:
DEPARTMENT
AGRICULTURE AND RURAL
DEVELOPMENT
4
th
Respondent
MACHABEDI
DINAH KOMETSI
NO
5
th
Respondent
(In
her capacity as trustee of Kopano Uitkyk No.2 Trust, IT
000071/2015(8))
PHATEDI
JOHANNES MOKONE
NO
6
th
Respondent
(In
his capacity as trustee of Kopano Uitkyk No
.
2
Trust,
IT
000071/2015(8))
PHAKELA
BEN MAPHAKISA
NO
7th
Respondent
(In
his capacity as trustee of Kopano Uitkyk No.2 Trust,
IT
000071/2015(8))
NAMEDI
FRANS MELATO
NO
8
th
Respondent
(In
his capacity as trustee of Kopano Uitkyk No.2 Trust,
IT
000071/2015(8))
TEBELLO
JOHANNES MOTSOANI
NO
`
9
th
Respondent
(In
his capacity as trustee of Kopano Uitkyk No
.
2
Trust,
IT
000071/2015(8))
CORAM:
VAN ZYL, J
HEARD
ON:
26
AUGUST
2022
DELIVERED
ON:
16
MARCH
2023
[1]
The main
application between the applicant and the first to fourth respondents
served before me on the basis of it being an urgent
interdictory
application.
[2]
At the same
time an urgent interlocutory application to intervene served before
me, with the fifth and sixth respondents as the
duly authorised
applicants on behalf of the fifth to ninth respondents and the
applicant and the first to fourth respondents as
the respondents.
[3]
I
will
refer
to
the
parties
as
in
the
main
application
as
cited
in
the heading of
this judgment.
Succinct
back
g
round:
[4]
The applicant
is seeking urgent relief which, in terms of the notice of motion,
entails,
inter
alia,
that
the first to fourth respondents, pending
the
finalisation of the action under case number 1993/2022, be
"interdicted
from (i) evicting the applicant, from (ii) interfering with the
possession exercised by the applicant over, and
(iii) interfering
with the possession exercised by the applicant in the running of its
commercial farming enterprises over, the
immovable properties, in the
district of Parys in the Free State, being ..."
the
18 farms listed in the notice of motion.
[5]
The first
respondent (referred to in the papers as "the DALRRD") is
the owner of the aforesaid 18 farms ("the DALRRD
farms"),
which it bought during March 2013 from multiple sellers, including
amongst others, the Louis Claassen Family Trust.
[6]
During 2013 the then
National Land Allocation and Recapitalisation Control Committee
approved the acquisition of the DALRRD farms
in terms of section
10(1)(a) of the Land Reform: Provision of Land & Assistance Act,
126 of 1993 for the sum of R45 000 000.00.
Approval was
also given in terms of section 10(1)(b)(iii) of the Act for the
acquisition of various movable and biological assets
("the
movable assets") for the sum of R45 000 000.00.
Pursuant to
the approval, the erstwhile Department of Rural Development and Land
Reform, now the
DALRRD,
concluded
a purchase
agreement
for the sale
of the DALRRD farms and the movable assets with the LH Claassen
Family Trust, Louis Claassen Family Trust and Expectra
322 (Pty) Ltd
in March 2013.
[7]
There are four
main role-players which emanated from the aforesaid acquisition of
the DALRRD farms and the events subsequent thereto.
These entities
are the following:
1.
The DALRRD, on
its own, but also in conjunction with the other respondents.
2.
The applicant
("the Company").
The present
directors of the Company are Mr Lethoba, who is also the deponent to
the founding affidavit, and Mr Louis Hendrik Claassen
(snr).
3.
The Louis
Claassen Family Trust ("the LCF Trust").
The present
trustees of the LCF Trust are Mr LH Claassen (snr), Mr SH Olivier, Mr
LH Claassen 0nr) and Mr DK Claassen.
4.
The Kopano
Uitkyk No. 2 Trust, IT 000071/2015(8) ("the Kopano Uitkyk
Trust").
The present
trustees of the Kopano Uitkyk Trust are Ms MD Kometsi, Mr PJ Mokane,
Mr PB Maphakisa, Mr NF Melato and Mr TJ Motsoani.
The
Company's version:
[8]
According
to the Company
the DALRRD
and the LCF
Trust
concluded a
partly
written,
partly
oral
agreement
to
the
benefit
of
a
third
party,
being the Company, during or
about March to May 2014 ("the
Stipulatio
Alteri').
The
material express, alternatively implied, further alternatively tacit
terms of the
Stipulatio
Alteri
were,
inter alia,
the
following according to the Company:
1.
The Company
would have the right to the use and enjoyment over the DALRRD farms,
including making use as needed of the farming equipment
on the DALRRD
farms and over the immovable properties made available by the LCF
Trust (the LCF Trust farms). The Company would
also have the the
right to take the profits generated from the commercial farming
enterprise conducted on the DALRRD farms and
the LCF Trust
farms, consisting primarily of a cash crop of maize, sunflowers
and soya, as
well as to manage the value of the herd of cattle on the DALRRD
farms
and the LCF
Trust farms,
which entitled
the Company to take the increase in the value of the original number
of cattle, and the increase
in original
number
of cattle,
on the said
farms for itself.
2.
The Company,
being the joint venture vehicle, would have shareholding of 40% by
the LCF Trust, being the strategic partner with
commercial farming
experience/know-how and availability to funding, and 60% by the
beneficiary chosen by the DALRRD, being black
emerging commercial
farmers, to whom the DALRRD farms would be leased from time to time.
3.
Profit made by
the Company would be distributed to the shareholders, being the joint
venture parties according to the percentage
shareholding.
4.
The duration
of the right granted to the Company over the DALRRD farms and the LCF
Trust farms would subsist for the duration of
the lease granted to
the beneficiary chosen from time to time by the DALRRD, but for not
less than five years.
[9]
According to
the applicant the benefit under the
Stipulatio
Alteri
is
an interest in land in the form of a
usufruct
in favour
of the Company.
The Company
accepted the
benefit of the
Stipulatio
Alteri
by
conducting such commercial farming enterprise on the DALRRD farms and
on the LCF Trust farms from date of the
Stipulatio
Alteri
onwards.
The DALRRD was
aware at all times of such acceptance in that it monitored
implementation of the commercial farming enterprise.
[10]
At all
material times the DALRRD was acting in terms of its powers and
obligations in terms of the Land Reform and Assistance Act,
read with
the relevant policies, by developing the labour tenants/farmworkers
of PORTION 1 FARM UITKYK NO. 146 (part of the DALRRD
farms) into
black commercial farmers with the ability to eventually become owners
of such
farmland. Mr Lethoba forms part of the said labour
tenants/farmworkers. This development of the labour
tenants/farmworkers
has been taking place with the support, both
financially and in respect of commercial farming skills, of the LCF
Trust, being the
strategic partner chosen by the DALRRD
.
[11]
Since the
acceptance
of
the
Stipulatio
Alteri
by the
Company
in
2014, Mr Lethoba has been and continuous to be farm manager of the
commercial farming
enterprise.
During the
same period Mr Lethoba
was also
chosen by the labour tenants to be the caretaker of the farm Uitkyk
on their behalf.
[12]
During or
about January 2015 the DALRRD registered the Kopano Uitkyk Trust,
being the chosen beneficiary by the DALRRD.
The labour
tenants of the farm Uitkyk were the beneficiaries of the Kopano
Uitkyk Trust.
The DALRRD at
the time informed the trustees of the Kopano Uitkyk Trust that it
would be the chosen beneficiary in the Company.
[13]
On 30 August
2017 the Kopano Uitkyk Trust passed an unanimous resolution to enter
as the chosen beneficiary into the Company as
a shareholder
with
the LCF
Trust,
on
the
terms
as
set
out by
the DALRRD and
the LCF Trust in the
Stipulatio
Alteri.
The
Company therefore tendered such 40% shareholding to the LCF Trust and
60% shareholding
to the Kopano
Uitkyk Trust.
[14]
The aforesaid
Stipulatio
Alteri
was
orally amended on or about 12 November 2022 during a meeting between
the DALRRD and the LCF Trust as to the duration of the
right granted
to the Company over the DALRRD farms and the LCF Trust farms.
According to
the
Amended
Stipulatio Alteri
the
said right would subsist for the duration of the lease granted
to the
beneficiary
chosen
from
time
to time
by
the
DALRRD, but
1for not less than a period of 30 years.
[15]
The Company
accepted the benefit of the
Amended
Stipulatio Alteri,
which
acceptance the DALRRD was aware of.
All the
trustees of the Kopano
Uitkyk
Trust at the
time, as well as the beneficiaries thereof, also attended the said
meeting and consequently
also had
notice of the
Amended
Stipulatio Alteri
and
the acceptance thereof by the Company.
[16]
At the said
meeting the LCF Trust and the Kopano Uitkyk Trust also orally agreed
on the terms of the Shareholders Agreement, which
Shareholders
Agreement was to be drafted by the attorney for the Company and after
signature by the Kopano Uitkyk Trust of the
Agricultural Lease
referred to hereinafter, the parties would sign such Shareholders
Agreement.
[17]
On or about 27
November 2020 the Kopano Uitkyk Trust and the DALRRD entered into a
written Agricultural Agreement of Lease for a
period of 30 years,
with an option to renew for a further 20 years, pertaining to the
DALRRD farms.
At the time of
entering into the Agricultural Lease, the DALRRD and the Kopano
Uitkyk Trust were aware of the pre-existing
rights of the
Company in terms of the
Amended
Stipulatio Alteri,
as
accepted, to conduct the commercial farming enterprise on the DALRRD
farms and the LCF Trust farms, including making use of the
farming
equipment as needed and
managing the
livestock.
The
rights of the DALRRD and/or the Kopano Uitkyk Trust pertaining to the
DALRRD farms, farm equipment and livestock are consequently
limited to the
extent of the rights previously granted to and accepted by the
Company.
[18]
The
Shareholders Agreement was subsequently drafted by the attorney for
the Company
and the LCF
Trust provided
same to the
Kopano Uitkyk Trust during or about February 2021 for signature.
The Kopano
Uitkyk Trust has, however, failed to sign the agreement.
[19]
The Company
continuous to tender the 60% shareholding to
the
Kopano Uitkyk
Trust, as set out in the Shareholders
Agreement,
and as
intended by the DALRRD and
the LCF Trust initially when entering into the
Stipulatio
Alteri,
and
as later amended.
[20]
During early
2021 an internal disagreement arose between the trustees of the
Kopano Uitkyk Trust, in that Ms Kometsi (supported
by Mr Mokane) who
was not participating in commercial farming anymore by that time,
sought to cease the rights of the Company for
herself, alternatively
for the Kopano Uitkyk Trust.
Ms Kometsi
issued an urgent application for a declaratory order under case
number 818/2021 to be heard on 3 March 2021.
On the said
date an order was made by agreement between the parties to the effect
that Ms Kometsi withdrew the application and that
the parties agreed
to a meeting between all stakeholders on 16 March 2021
.
[21]
The aforesaid
meeting was eventually held on 20 April 2021 between
the attorney
of record
for
the various
plaintiffs
in the action
to which
I will refer
hereinlater, a representative for the DALRRD and Jam Jam Attorneys,
being the attorneys who represented Ms Kometsi
and Mr Mokane. Further
negotiations
also took
place thereafter. It was agreed at the said meeting between all the
parties that the Company, as managed by Mr Lethoba,
would continue
with all farming activities
during such
process.
[22]
During several
subsequent meetings it was accepted and confirmed by all parties that
the commercial farming enterprise, comprising
the DALRRD farms and
the LCF Trust farms, including the farming equipment, are in the
peaceful and undisturbed possession of the
Company as managed by Mr
Lethoba.
[23]
On 1 and 2
September 2021 Jam Jam Attorneys, together with Ms Kometsi and Mr
Mokane, apparently on behalf of the Kopano Uitkyk Trust,
together
with other parties, proceeded to dispossess the
Company and Mr
Lethoba of the possession of the commercial farming enterprise.
On 7 September
2021 the Company and the other plaintiffs in the action approached
the court on an urgent basis under case number
4076/2021 for an order
to restore possession and cease interference with the rights
exercised by the Company and Mr Lethoba. On
8 September 2021 the
court granted an order as requested and restored possession to the
Company and Mr Lethoba over 12 of the DLARRD
farms and three of the
LCF Trust farms and ordered, amongst others, Ms Kometsi, Mr Mokane
and Jam Jam Attorneys to cease interfering
with the possession of the
Company and Mr Lethoba.
[24]
On 11 January
2022 Ms Kometsi and Mr Mokane, on behalf of the Kopano Uitkyk Trust,
issued action proceedings under case number 55/2022,
in
which
claims
are made
by
them
to
the
profit
of
the Company
pertaining to the commercial-farming enterprise, including the
management of the livestock, against either the Company
or the LCF
Trust or both ("the Kometsi action").
According to
the Company the
court will be
requested to consolidate the two actions to be heard together.
[25]
On 28 April
2022 the Company, as first plaintiff, instituted action under case
number 1993/2022, where, amongst other claims, it
claims for the
enforcement
of
the
Amended
Stipulatio Alteri.
First
to fourth respondents' version:
[26]
In the
answering affidavit it is admitted that the DALRRD held discussions
with the LCF Trust with the intention of concluding a
JV Agreement
between Kopano Uitkyk Trust and the LCF Trust.
It is,
however, denied that the discussions led to the conclusion of any
agreement between the Kopano Uitkyk Trust and the LCF Trust.

According to the DALRRD the Kopano Uitkyk Trust does not want to
enter into a business relationship with the LCF Trust and the
DALRRD
has no power to compel the Kopano Uitkyk Trust to enter into a JV
Agreement with the LCF Trust.
[27]
The Company
and
the LCF
Trust
have
no
legal right to
be
in
possession
of
the farms.
The
DALRRD is the owner of the farms and has signed a 30-year lease
agreement with the Kopano Uitkyk Trust.
The Kopano
Uitkyk Trust is the party which has a right in the form of a lease
agreement.
Application
to intervene:
[28]
The
prima
facie
right
on which the Company
is relying for
purposes of the
interim
interdictory
relief,
is set out
in
its founding
affidavit
as follows:
"76.
The Company in
terms of a court order issued ..
.
in September
2021 where third parties sought to spoliate the Company -
and to which
the respondents were parties but chose not to oppose -
in case number
4076/2021 ..., was found to be 7in lawful and undisturbed possession
of the commercial farming properties, on which
the commercial farming
enterprise was conducted.
.
.
.
In
any event, at that stage the DALRRD, and other respondents, did not
attempt to interfere with the possession or rights as exercised
by
the Company.
It was only
thereafter that these threats in the letters attached above emanated
from the respondents
.
.
.
.
77.
The Company
has already
instituted action
.
..
under
case
number 1993/2022, where amongst other claims, it claims for the
enforcement of the
Amended
Stipulatio Alteri
in
terms whereof the Company was granted, and accepted by conduct,
inter
alia,
the
right to the use and enjoyment over the immovable properties of the
DALRRD.
...
All these issues will only be finally determined by the court hearing
the action.
For the
purposes of this interim interdict, the Company has shown the
relevant right."
[29]
As correctly
pointed out in the founding affidavit in the application to
intervene, the Company made substantive allegations in
its founding
affidavit in relation to the Kopano Uitkyk Trust in relation to,
inter alia,
its
alleged notice and acceptance of the
Amended
Stipulatio Alteri,
its
alleged agreement as to the format of the Shareholders Agreement of
the Company, the Kopano Uitkyk Trust's alleged knowledge
of the
alleged pre-existing rights of the Company in terms of the
Amended
Stipulatio
Alteri
when
it concluded
the
Agricultural Lease Agreement and the alleged acceptance by the Kopano
Uitkyk Trust that the commercial farming enterprise, comprising
the
DALRRD farms (and equipment) and the LCF Trust farms, as well as the
cattle, are in the peaceful and undisturbed possession
of the
Company.
[30]
It is evident
that the Company is heavily relying on the aforesaid allegations for
purposes of its alleged
prima
facie
right
for purposes of the interdictory relief.
[31]
Despite the
aforesaid material allegations against and in relation to the Kopano
Uitkyk Trust, the Company
failed to cite
the Kopano Uitkyk
Trust
as a party
to the
proceedings.
This must
especially
be considered
against the background that it is not in dispute that the Kopano
Uitkyk Trust is a lessee of the relevant DALRRD farms
in terms of the
Agricultural Lease Agreement. The Kopano Uitkyk Trust is relying on
the said lease agreement
and alleges
that in terms thereof the Trust is the entity which is entitled to
the control of the farm and the farming activities,
as well as all
the movable assets on the farm.
[32]
Furthermore,
the mere fact that the court found in September 2021 that the Company
was in peaceful and undisturbed possession of
the relevant farms,
does not necessarily mean that that was still the factual position at
the time when the Company instituted
the present
application.
[33]
The Kopano
Uitkyk Trust is clearly an entity which has a direct and substantial
interest in the present dispute between the parties.
The Kopano
Uitkyk Trust
is also a party to the two actions which are currently pending
between the relevant parties, pertaining to the very
same subject
matter.
[34]
The Kopano
Uitkyk Trust was also a party to some of the correspondence attached
to the
founding
affidavit
which
the Company is
relying upon in support of the urgent relief it is seeking in- the
present application. In fact, certain undertakings
were even
requested from the Kopano
Uitkyk
Trust in the
final letter
of demand,
annexure
"F19",
which was sent on behalf of the Company before it launched the urgent
application.
[35]
It is
therefore in my view evident that the Kopano Uitkyk Trust has a
direct and substantial interest in the interdictory relief
being
sought against the first to fourth respondents.
[36]
I am
consequently convinced that the applicant should have cited the
Kopano Uitkyk Trust (its trustees) in the application as respondents,

which it failed to do.
[37]
With regard to
the urgency of the application to intervene, the Kopano Uitkyk Trust
clearly had no other option but to have brought
the application on an
urgent basis in order to be adjudicated
simultaneously
with the main application. Condonation is therefore to be granted in
this regard.
[38]
The Kopano
Uitkyk Trust (the trustees) are therefore entitled to
intervene
and
to
be joined
as
respondents.
All
the parties
were
ad idem
that
should I grant the application for leave to intervene, all the
trustees
of
the Kopano
Uitkyk
Trust
are
to be joined
as respondents
and not only the first and second intervening applicants.
[39]
With regard to
the costs of the application to intervene, Mr Meijers, on behalf of
the Company, submitted that should the application
to intervene be
granted, the costs thereof are to be costs in the main application.
I cannot agree
with this contention.
The Company
had a duty to have cited the Kopano Uitkyk Trust (its trustees) as
respondents in the main application,
which
it failed to
do.
It
is the Company's
failure in
this regard which necessitated the Kopano Uitkyk Trust to bring the
application for leave to intervene.
The Company
then went even further and opposed the application for leave to
intervene.
[40]
In my view the
Company consequently only has itself to blame for the costs of the
application for leave to intervene and should
therefore be ordered to
pay same.
[41]
I
will deal
with
the
request
for
costs
of two
counsel
later
in the
judgment.
Kopano
Uitkyk Trust's version:
[42]
The trustees
confirm that they concluded a lease agreement with the DALRRD for a
term of 30 years in terms whereof they are to take
over the
operations of the farms and the lease agreement furthermore vests
them with all movable assets on the farms, including
cattle,
equipment and implements.
[43]
The trustees
deny the conclusion of a
Stipulatio
Alteri
as
alleged by the Company and deny that they concluded any agreement
with the LCF Trust.
In
limine: Locus standi
and
Urgency:
[44]
Both the
DALLRD and the Kopano Uitkyk Trust raised the point that the
application is not urgent; alternatively, that the alleged
urgency is
self­ created.
[45]
The DALLRD
also raised the point that the Company does not have the necessary
locus
standi
to
have launched the application.
[46]
I deem
it apposite to deal with the aforesaid two points simultaneously
since they are, in my view, entwined in the relevant circumstances
of this
application.
[47]
The legal position
with regard to the requirements for urgency is well­ known.
Rule
6(12)
deals
with
urgent
applications
and
Rule
6(12)(b)
.explicitly
sets out the
requirements
for purposes
of an urgent
application:
"In
every affidavit filed in support of any application under paragraph
(a) of this subrule, the applicant must set forth explicitly
the
circumstances which is
[sic]
averred render
[sic]
the
matter urgent and the reasons why the applicant claims that applicant
could not be afforded substantial redress at the hearing
in due
course."
[48]
In
East
Rock Trading 7
(Pty)
Ltd
& Another
v
Eagle Valley Granite
(Pty)
Ltd
& Others
(11/33767)
[2011] ZAGPJHC 196 (23 September 2011) at paras [6] -
[9] the court
dealt with the aforesaid requirements:
"[6]
The import
thereof is that the procedure set out in rule 6(12) is not there for
taking. An applicant has to set forth explicitly
the circumstances
which he avers
render
the
matter
urgent.
More
im
p
ortantl
y
,
the
A
pp
licant
must
state
the
reasons
wh
y
he
claims that he cannot be afforded substantial redress at a hearing in
due
course.
The question of whether a matter is sufficiently urgent to be
enrolled and heard
as
an
urgent
application
is
underpinned
by
the
issue
of
absence
of substantial
redress
in
an application
in due
course.
The
rules
allow
the
court
to come to the
assistance of a litigant because if the latter were to wait for the
normal course laid down by the rules it will
not obtain substantial
redress.
[7]
It
is
im
p
ortant
to
note
that
the
rules
re
q
uire
absence
of
substantial
redress
.
This is not equivalent to the irreparable harm that is required
before the granting of an interim
relief.
It is
something
less.
He may
still
obtain
redress
in an
application
in
due course but it may not be
substantial.
Whether
an applicant will not be able to
obtain
substantial redress in an application in due course will be
determined by the
facts of
each case.
An
applicant
must
make out his cases in that regard
.
[8]
In my
view the delay
in instituting
proceedings
is not,
on its own
a ground,
for refusing
to regard the matter as urgent. A court is obliged to consider the
circumstances
of
the
case
and
the
explanation
given.
The
important
issue is
whether, despite the delay, the applicant can or cannot be afforded
substantial
redress at a
hearing in due course, A delay might be an indication that the matter
is not as urgent as the applicant would want
the Court to believe. On
the other hand a delay may have been caused by the fact that the
Applicant was attempting
to settle the
matter or collect more facts with regard thereto.
[9]
It means that
if there is some delay in instituting the proceedings an Applicant
has
to
explain
the
reasons
for
the
delay
and
why
despite
the
delay
he
claims
that he cannot
be afforded substantial redress at a hearing in due course. I must
also mention that the fact the Applicant wants
to have the matter
resolved urgently does not render
the
matter
urgent.
The
correct
and
the
crucial
test
is
whether,
if
the matter
were
to follow its
normal
course
as
laid down
by
the rules,
an Applicant
will be
afforded substantial redress. If he cannot be afforded substantial
redress at a hearing
in due
course,
then the
matter
qualifies
to be enrolled
and heard as
an urgent
application.
If
however
despite
the
anxiety
of
an
Applicant
he
can
be
afforded
a
substantial
redress
in an
application
in due
course
the
application
does
not qualify
to be enrolled and heard as an urgent application."
(Own emphasis)
[49]
The
correspondence which is attached to the Company's founding affidavit
is to be considered in conjunction with the averments in
the
affidavit itself, since the Company places reliance on the
correspondence for purposes of the urgency of the application.
[50]
In paragraph
60 of the founding affidavit, the company alleges as
follows:
"On
1 February 2022 the DALRRD gave notice to the Company to vacate the
DALRRD farms. Such notice to vacate is attached ...
hereto as
Annexure "F11".
[51]
The
said
letter
was
indeed
addressed
to the
Company,
with
the heading
"Notice
to vacate the farms Uitkyk and others: Fezile Dabi District".
The letter
reads as follows:
"After
careful consideration of your relationship with Kopano Uitkyk No. 2
coupled with the outcome of a series of meetings
that have been held
thus far with both parties, this Office has come to the conclusion
that the relationship between the parties
is irreparable and that the
Department wishes to bring to your attention the aspirations and
wishes of Kopano Uitkyk No. 2 to continue
with the farming operations
independent of you.
The
Department wishes to stress that the farms Uitkyk and others as per
the existing Lease Agreement known to you, have been officially

allocated to Kopano Uitkyk No. 2 inclusive of both the loose assets
(Mechanization, implements and livestock as at the effective
date of
the Lease Agreement).
We
trust that this is in order and that you will cooperate with the
Lessees of the subject matter farms."
[52]
Although the heading
of the letter indicates that it is a
"notice
to vacate the farms
Uitkyk
and
others",
I
agree with the
contention
on
behalf
of
the DALLRD that it cannot be regarded as threatening eviction against
the Company. It also does not contain any date in terms
of which the
Company
would
be expected
to
vacate the farms. In my view it is evident
that
the
Company
itself
did
not
consider
it
to
have
been
a
threatening eviction against
the Company either, considering that it did not respond to it on an
urgent basis.
[53]
The Company's
attorney
of first
instance,
Uys
Attorneys,
responded with
a letter dated 25 March 2022, attached to the founding affidavit as
annexure "F12". The letter was addressed
not only on behalf
of the Company, but also on behalf of the LCF Trust and Mr Lethoba.
According
to
the Company,
in paragraph
61 of the
founding
affidavit, the
said letter set out
"the
relevant facts pertaining to the Amended Stipulatio Alteri above, and
stating that the plaintiffs in the action, and in
particular the
Company, would enforce their rights".
From
a reading of the
letter
it is evident
that
the contents
thereof
are
basically
the
same as what
is set out in the founding affidavit up to the point where reference
is made to the action which was issued by the
Kopano Uitkyk Trust on
11 January 2022. I deem it necessary to point out that in the said
letter the following was also alleged:
"5.37
The right of the JV to continue to conduct the commercial farming
enterprise has been continually threatened by Kometsi
and Mokane,
apparently acting on behalf of the Kopano Uitkyk No. 2 Trust, as well
as by their attorney of record, that is causing
irreparable harm to
the JV, as it will not be· able to continue to conduct the
commercial farming enterprise upon materialization
of the threats."
[54]
The letter was
ended with the following paragraph:
"Therefore,
we hold instructions to enforce our clients· rights and to
oppose any and/or all legal processes instituted
by any party which
may have the effect of limiting and/or deter from our clients'
rights."
[55]
In
response the DALLRD addressed a letter on 30 March 2022 to Uys
Attorneys,
representing
the Company,
the trustees
of
the LCF
Trust and Mr
Lethoba, which letter is attached to the founding affidavit as
annexure
"F13".
In the said
letter the DALLRD
denied that it
entered into a
Stipulatio
Alteri
for
the benefit of the Company, nor did it grant an
usufruct
in favour
of the Joint Venture.
In paragraphs
7 and 8 of the
letter the following was stated:
"7.
The FS PSSC kindly request again that the Claassen Family Trust
accept that the lawful lessees of the farm, Kopano Uitkyk
No. 2
Trust, no longer wishes to conduct farming activities with the
Claassen Family Trust.
8.
The FS PSSC further requests that the Claassen Family Trust enter
into negotiations with the Department regarding when the farms
will
be vacated. Failure to adhere to this request will force the FS PSSC
to approach the High Court for an eviction order."
[56]
The aforesaid
letter did not trigger any legal action from the Company, the CLR
Trust or Mr Lethoba. From a proper reading of the
letter it is
evident that in so far as possible eviction is concerned, it was
clearly mentioned in relation to the CLF Trust and
not the Company.
Furthermore,
the letter did
not reflect any unlawful intention on the part of the DALRRD, since
it was clearly stated that if necessary, the
court will be approached
for an order of eviction.
[57]
On 24 May 2022 the
DALRRD addressed a letter to the LCF Trust with the
heading
"NOTICE
TO
VACATE
THE
FARMS
UITKYK
AND OTHERS...
". The
letter, attached to the founding affidavit as annexure "F15",
reads as follows:
"Following
the recent developments in the case, it is becoming
clear that the
Claassen Family Trust will not vacate the farm willingly. It is our
intention that the Claassen
Family
Trust vacate
the farm at
the end of the current harvesting
season.
The
Claassen Family Trust is therefore required to vacate the farm at the
end of August 2022.
Should
you fail to adhere to this instruction, the Department of
Agriculture, Land Reform and Rural Development will have no choice

but to institute eviction proceedings against the Claassen Family
Trust."
[58]
It is evident
that the letter of 24 May 2022 triggered the present application and
forms the basis of the Company's urgent application.
However, as
pertinently pointed out in the answering affidavit, the said letter
was addressed to the LCF Trust and it is the LCF
trust who was given
notice to vacate at the end of August 2022, failing which the DALLRD
was of the intention to bring an eviction
application. The letter was
not addressed to the Company.
[59]
The
LCF
Trust
and the
Company
are
two
separate
legal
entities,
as
also admitted by the Company in its replying affidavit. The Company
therefore cannot by the following mere allegation as contained
in
paragraph 66 of the founding affidavit substitute the one entity with
the other:
"The
letter in all the circumstances was clearly directed at the Company,
and the Respondents merely chose to adopt the nomenclature
of the
name of one of the shareholders of the Company, so as to disguise its
true intent of evicting the Company at the end of
August 2022 from
the DALRRD Farms."
[60]
In my
view one of the implications
of the fact
that the letter with the notice to vacate contained therein was
addressed to the LCF Trust and not to the Company,
is that the
Company cannot rely on the 24 May 2022 letter for purposes of the
alleged urgency of the application with reference
to the end of
August
2022.
The Company
is not the
entity who was
notified to vacate by the end of August 2022.
[61]
Even if I am
to be wrong in my last-mentioned finding and it is to be accepted
that the Company can place reliance on the 24 May
2022 letter, the
contents of the letter did not entitle the Company to have approached
court on an urgent basis.
I have already
indicated that for purposes of an urgent application an applicant
must make out a case why it claims that it cannot
afforded
substantial redress at a hearing in due course. In the 24 may 2022
letter it was pertinently indicated that should the
farms not be
vacated by the end of August 2022, the DALRRD would institute
eviction proceedings. There was no indication from the
DALRRD
that it was
planning
on
taking
the
law into its hands by evicting any entity without due legal process.
Therefore, the
Company would
have been able to obtain substantial redress in due course if it had
waited for the DALRRD to launch legal proceedings
to evict
the Company
from
the farms.
It then
would
have
had ample
time to oppose
such an application and to even file a counter application for
whatever relief it considered necessary.
[62]
The Company
seems to also rely on the following allegations in the founding
affidavit for purposes of urgency, especially with regard
to the
relief sought in addition to the eviction-interdict:
"72.
Acting on the above information that such settlement negotiations
were either unauthorised
or
were
now
denied,
as well
as
information
received
from
employees of
the Company
during the
last week
of
July
2022,
pertaining
to actions
of
intimidation
against such
employees
by
certain of the trustees
and
beneficiaries
of the Kopano
Uitkyk
No.
2 Trusts
stating
to them
that they
would be unemployed
by the end of
August
and
would have to
get
off of the
DALRRD
Farms
-
which
only could have been at the behest of the Respondents -
the attorney
of record of the Company
on 29 July
2022 send a letter to the State Attorney..
.
"
[63]
Not only do
the aforesaid allegations constitute hearsay evidence, but once again
the Company is attempting to hold a separate legal
entity responsible
for
the conduct
by or on
behalf
of a
different
separate
entity,
by
means
of
a bald,
unsubstantiated
statement
that
the actions of
certain of the trustees and beneficiaries of the Kopano Uitkyk Trust
occurred on the behest of the DALLRD.
[64]
In the replying
affidavit the Company elaborated on the aforesaid hearsay allegations
and attached an affidavit deposed to by one
of the employees
of the Company
who confirms that he and other employees of the Company who are not
beneficiaries of the Kopano Uitkyk Trust were
informed during a
meeting held on 2 July 2022 that, inter alia, Kopano Uitkyk Trust and
another entity will take over the farms
on 1 September 2022, where
after the deponent and the other employees of the Company will no
longer be employed on the farm and
•
will
not be allowed
on the farm
and those who
reside
on the farm,
will have
to move away.
However, it is evident from the said affidavit that the
trustees of
the Kopano Uitkyk Trust called the meeting and the trustees advised
the Company's
employees
accordingly.
There
is no
indication in the said affidavit that any representative of the
DALRRD was present and/or
that the
meeting
was
held on instructions
of the DALRRD.
It can
consequently
not
be
relied
upon
for
purposes
of
urgency
of
its
case against
the DALRRD.
Conclusion:
[65]
In the
circumstances
I am of the
view that the applicant
failed to make
out a proper case with regard to the alleged urgency of the
application. The application consequently
stands to be
removed from the roll.
[66]
Considering my
finding with regard to the lack of urgency, I do not consider it
necessary to determine
the issue of
locus
standi.
Costs:
[67]
With regard to
the costs of the main application, there is no reason why costs
should not follow the outcome.
[68]
Mr Meijers
submitted that costs of two counsel are not justified in an
application for an interim interdict.
I cannot agree
with his submission. One can not only consider the nature of the
relief being sought, but also the complexity of
the matter and the
volume of the application. In this particular instance I am also
mindful of the fact that the respondents were
compelled to draft
their respective papers within truncated time periods.
[69]
In the
circumstances
I am justified
that the employ of two counsel
both in the
application to intervene and in the main application, was fair and
justified.
Order:
[70]
The following
order is consequently made:
1.
In the
application to intervene, condonation is granted in terms of prayer 1
of the notice of motion.
2.
The
application to intervene is granted and the following parties are
joined as follows to the main application
in their
capacity
as
trustees of the Kopano Uitkyk No. 2 Trust, IT 000071/2015(8):
2.1
Machabedi
Dinah Kometsi NO as the 5
th
respondent;
2.2
Phatedi
Johannes
Mckone NO as
the 6
th
respondent;
2.3
Phakela Ben
Maphakisa NO as the 7
th
respondent;
2.4
Namedi Frans
Melato NO as the 8
th
respondent;
and
2.5
Tebello
Johannes
Motsoani NO as
the 9
th
respondent.
3.
The costs of
the application to intervene are to be paid by the applicant
in the main
application,
including
the costs of
two counsel.
4.
The main
application is removed from the roll.
5.
The costs of
the main application are to be paid by the applicant in the main
application,
including the
costs of two counsel.
C.
VAN ZYL J
On
behalf of the applicant:

Adv. GV Meijers
Instructed
by
:
McIntyre
Van der Post Attorneys
BLOEMFONTEIN
On
behalf of the 1
st
-
4
th
respondents:

Adv. TD Seneke
Assisted
by
:
Adv.
AS Boonzaaier
Instructed
by
:
Office
of the State Attorney
BLOEMFONTEIN
On
behalf of the
5
th
- 9
th
respondents:

Adv. M Ramaili SC
Assisted
by
:
Adv.
K Molefe
Instructed
by
:
Rampai
Attorneys
BLOEMFONTEIN