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[2023] ZAFSHC 131
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Du Plessis and Others v Majiedt N.O. and Others (3059/2021) [2023] ZAFSHC 131 (18 April 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Application
number: 3059/2021
In
the main application between:
TOBIAS
CASPARUS DU PLESSIS
1
st
Applicant
(ID
No: 7[....]1)
ANNA
CORNELIA JACOMINA DU PLESSIS N.O
.
2
nd
Applicant
TOBIAS
CASPARUS DU PLESSIS N.O
.
3
rd
Applicant
ANNA
CORNELIA
JACOMINA JOUBERT
N.O
.
4
th
Applicant
(In
their capacity as
Trustees
of the
Tafelkop Boerdery Trust
,
IT
No: 22[....]0)
and
DONOVAN
MAJIEDT N.O
.
1
st
Respondent
(In
his capacity as
a liquidator
of
Full Circle Projects Twenty
CC
,
Registration
No. 100[....]23 [
in
liquidation
])
NICKY
DE
KLERK
2
nd
Respondent
REGISTRAR
OF DEEDS, BLOEMFONTEIN
3
rd
Respondent
MASTER
OF THE HIGH COURT, MAHIKENG
4
th
Respondent
MASTER
OF THE HIGH COURT.
BLOEMFONTEIN
5
th
Respondent
NICOLAAS
DANIEL DE KLERK N.O.
6
th
Respondent
SUSANNA
JOHANNA ELIZABETH DE KLERK
N.O.
7
th
Respondent
(In
their capacity as
Trustees
of the
De Klerk Family Trust
,
IT
No. 13[....]0
AND
In
the counter application between:
NICOLAAS
DANIEL DE KLERK N.O.
1
st
Applicant/
6
th
Respondent in Main Application
SUSANNA
JOHANNA
ELIZABETH
DEKLERK
N.O.
2
nd
Applicant/
7
th
Respondent in Main Application
(In
their capacity as
Trustees
of the
De Klerk Family Trust,
IT
No. 13[....]0)
and
TOBIAS
CASPARUS DU PLESSIS
1
st
Respondent/
1st
Applicant in Main Application
(ID
No: 7[....]1)
DONOVAN
MAJIEDT N.O.
2
nd
Respondent/
1
st
Respondent in Main Application
LINDIWE
FLORENCE KAABA N.O.
3
rd
Respondent
(In
their capacity as
liquidators
of Full
Circle Projects
Twenty CC,
Registration
No. 03[....]3
[in liquidation])
GERT
LOUWRENS DE WET N.O.
4
th
Respondent
GONASAGREE
GOVENDER N.O.
5
th
Respondent
(In
their capacity as
provisional
trustees
of
the
Insolvent
Estate
of
Tobias
Casparus
du Plessis,
ID No: 7[....]1)
CORAM:
VANZYL, J
HEARD
ON:
17
FEBRUARY
2022
DELIVERED
ON:
27 SEPTEMBER
2022; 18 APRIL 2023
[1]
On 27 September
2022 I made the
following order:
"Ad
the
procedural
relief
sought in the counter application:
1.
With regard to the
leave sought by the first and second applicants in the counter
application, namely the Trustees of the De Klerk
Family Trust, IT No:
13[....]0, the following is granted:
1.1
The joinder of Lindiwe
Florence Kaaba N.O, the co-liquidator of Full Circle Projects Twenty
CC, Registration No. 100[....]23 [in
liquidation], in her official
capacity as such as the third respondent in the counter application;
and
1.2
The joinder of Gert
Louwrens Steyn de Wet N.O. and Gonasagree Govender N.O, the
provisional Trustees of the Insolvent Estate of
Tobias Casparus du
Pessis, ID No. 7[....]1, in their official capacities as such as the
fourth and fifth respondents respectively
in the counter application;
and
1.3
The institution of the
counter application against the aforesaid respondents, together with
the first and second respondents as
cited therein.
2.
Insofar as the Notice
of Counter Application and the affidavit thereto were not filed and
served timeously in accordance with the
Court Order of 16 September
2021, condonation is granted for such non compliance
.
Ad
the main application:
3.
The
main
application is
dismissed.
4.
The first applicant in
the main application, Tobias Casparus du
Plessis, and the
Trustees of the Tafelkop Boerdery Trust, IT No: 22[....]0 in their
official capacities as such, are to pay the
costs of the main
application, jointly and severally, payment by the one, the other to
be absolved.
Ad
the counter application:
5.
The lease agreement
concluded between the first respondent in the counter application,
Tobias Casparus du Plessis, and Full Circle
Projects Twenty CC on 15
August 2018, a copy of which lease agreement is annexed to the first
respondent's founding affidavit in
the main application as annexure
"J", is declared to be void and/or unenforceable.
6.
The first respondent in
the counter application, Tobias Casparus du Plessis, is to pay the
costs of the counter application.
Ad
the costs
of
the application
of the first
applicant in
the main
application/first
respondent in the counter application to file a further
affidavit:
7.
The first applicant in
the main application/first respondent in the counter application,
Tobias Casparus du Plessis, is to pay the
costs of the aforesaid
application.
Ad
the
costs
of
the
application
of
the
sixth
and
seventh
respondents
in
the main application
for leave
to be
joined
as
respondents
therein:
8.
The
first
applicant
in
the
main
application,
Tobias
Casparus
du
Plessis, and the
Trustees of the Tafelkop Boerdery Trust, IT No: 22[....]0 in their
official capacities
as
such, are to pay the costs of the aforesaid
application,
jointly
and
severally,
payment
by
the
one,
the other to be
absolved."
The
papers
filed
in
the
main
application
and
counter-application
and the respective
parties
as cited:
[2]
The first to fourth
applicants initially approached court by means of an application
("the main
application")
issued
on 6 July 2021
against
the first to fifth respondents for an order in the following terms:
"1.
That the time periods
described
(sic)
by
this Honourable
Court
pertaining to service
and time limits be
condoned
and
that the application
be
heard as urgent in terms of Rule 6(12).
2.
That the applicant
is granted
the powers to institute
action and/or
file an application as
advised.
3.
That the Registrar
of Deeds is stay
(sic)
from transferring
the farm:
REMAINING
EXTENT OF THE FARM G[....] 4[....], DISTRICT THEUNISSEN, FREE STATE
PROVINCE
EXTENT
85,4198 HECTARES
HELD
BY DEED OF TRANSFER T11[....]0
into
the name of Mr Nicky de Klerk, any entity represented by Mr Nicky de
Klerk and/or any other entity or person.
4.
That Mr Donovan Majiedt,
appointed liquidator of Full Circle Projects Twenty CC, with
Registration Number 100[....]23 in liquidation
and the Master of the
High Court, Mmabatho is
(sic)
ordered to produce
full disclosure and copies of all documentation needed by the
applicant under case number M000090/2020.
5.
That paragraph 3 above is
stayed for a period of thirty (30) days after receiving the
documentation referred to in paragraph 4 above,
for all the
applicants
to
issue
and
service
summons
against
all
the
interesting parties to
cancel the offer accepted by the first respondent made by the second
respondent.
6.
That the first to fifth
respondents pay the costs of this application, only if opposed.
That
any
other
party
opposing
this application
be ordered to pay
the
costs,
jointly
and separately
(sic)
with the
first
respondent,
the one pay the other
be absolved.
7.
That paragraph 1 to 7
(sic)
be made an interim
Court Order and that any interested parties be called upon to give
reasons on or before the 12th of August 2021
why this order not be
made a final (sic)."
[3]
On 8 July 2021 and by
agreement between the parties the application was removed from the
roll, to be set down for hearing according
to the Rules of Court and
of practice of the Free State High
Court
in
respect
of
opposed
applications.
Certain
time frames were set
out in the order for the first respondent to file his answering
affidavit and thereafter for the applicants
to file their replying
affidavit,
if any.
Costs were to be costs
in the application
.
[4]
In the main application
the following parties were cited
:
1.
Mr Du Plessis as the
first applicant.
2.
The trustees of the
Tafelkop Boerdery Trust as the second, third and fourth applicants.
They were cited because of their financial
interest since Tafelkop
Boerdery trust signed surety for Mr Du Plessis in favour of FNB.
3.
Mr Majiedt in his
capacity as one of the appointed liquidators in the insolvent estate
of the close corporation known as Full Circle
Projects Twenty CC (In
Liquidation)
("Full
Circle").
4.
Mr de Klerk in his
personal capacity as the second respondent.
5.
The Registrar of Deeds,
the Master of the High Court, Mmabatho
and
the
Master
of the High
Court,
Bloemfontein as the
third, fourth and fifth respondents
respectively
.
[5]
On 27 July 2021 Mr
Majiedt filed his answering
affidavit.
[6]
On 11 August 2021 Mr Du
Plessis filed his replying
affidavit.
[7]
On 1 September
2021 Mr de Klerk and
Mrs de Klerk in their capacity as the trustees of the De Klerk Family
Trust, IT13[....]0 ("the De Klerk
Family Trust") filed an
application for leave to intervene in the main application and to be
joined as the sixth and seventh
respondents therein.
[8]
On 16 September 2021
Molitsoane, J granted the application for leave to intervene with a
prescribed time period for the De Klerk
Family
Trust
to
deliver
its
answering
affidavit
to
the
main
application
and to file its counter application.
The costs of the
application for leave to intervene stood over for determination
during the adjudication
of the main
application.
[9]
On 4 October 2021 the
trustees of the De Klerk Family Trust as the first and second
applicants filed a counter-application in which
the following parties
were cited as respondents:
1.
Mr Du Plessis as the
first respondent.
2.
Mr Majiedt as the
second respondent.
3.
Ms Kaaba, the
co-liquidator of Full Circle as the third respondent.
4.
Mr de Wet and Mr
Govender in their capacity as the provisional
trustees
appointed
in the insolvent
estate of Mr Du
Plessis, as fourth and fifth respondents.
[10]
In terms
of the
counter-application the De Klerk
Family
Trust sought the
following relief:
"1.
That leave be granted to the applicants in the counter-application to
join and bring the counter-application against the
abovementioned
second to fifth respondents in the counter-application.
2.
That condonation be
granted for the failure by the applicants in the counter-application
to comply with the time periods stipulated
in paragraph 2 of the
order issued by the court on 16 September 2021
...
.
3.
That it be declared
that the lease agreement which was concluded between Tobias Casparus
du Plessis and Full Circle Projects Twenty
CC on 15 August 2018, a
copy of which lease agreement
is annexed as Annexure
"J" to the first respondent's
founding affidavit in
the main application, is null and void; alternatively, unenforceable.
4.
That the first
respondent in the counter-application be ordered to pay the costs of
the counter-application.
5.
In the event that the
counter-application is opposed by any of the other parties
to
the
counter-application
or
the
main
application,
that
such party be ordered
to pay the costs of the counter-application, jointly and severally
with the first respondent in the counter-application."
[11]
The De Klerk Family
Trust duly filed an affidavit which they requested be considered to
be in opposition to the relief which Mr
Du Plessis and the Tafelkop
Boerdery Trust were seeking in terms of the main application and
further that it served as the founding
affidavit in support of the
counter-application.
[12]
Only Mr Du Plessis and
the Tafelkop Boerdery Trust opposed the counter-application and filed
their answering
affidavit
to the
counter-application on
28 October 2021.
[13]
On
11 November
2021
the
De
Klerk
Family
Trust
filed
their replying
affidavit in the counter-application.
[14]
On
3 February
2022
a
further
affidavit
of Mr
Du
Plessis
was
filed
.
In paragraph
3 of the said affidavit
he stated as follows:
"Certain
matters, germane to the issues in this application, occurred after
the launching of the application,
and the exchange of
affidavits filed of record.
I have
been
advised
that
the
facts
pertaining
to
those
matters
are
material
to the
issues
at
hand,
in
fact
that
same
are
vital
for
the
adjudication
of
both
the
main
application
and
the
counter-application,
should
therefore
be placed before court
as it is in the interest of justice for same to be considered when
adjudicating
the
matter, hence the application to introduce a further affidavit."
[15]
During the hearing of
the application Mr Du Plessis was
represented by Mr De
Koning SC, assisted by Mr Lubbe.
Mr Majiedt was
represented by Mr Zietsman SC.
The De Klerk Family
Trust was represented by Mr Pienaar.
[16]
At the commencement
of the hearing
Messrs
Zietsman
and Pienaar
indicated
that
they
do
not
have
any
objection
to the
filing of Mr Du
Plessis'
further
affidavit
and,
subject
to my ruling, that
it be accepted into
evidence. Mr Zietsman, however, placed it on record that the
agreement that it be accepted into evidence
does not detract from
his right to dispute the contents thereof on factual and/or
procedural grounds on behalf of Mr Majiedt. I
subsequently ruled that
the further affidavit of Mr Du Plessis be allowed and accepted into
evidence.
[17]
The parties furthermore
indicated that they are in agreement that any late filing of any of
the papers in the application and counter
application, as well
as any late filing of heads of argument, be condoned.
I consequently ordered
accordingly and after some debate between the parties, this
condonation included my acceptance of supplementary
heads of argument
filed on behalf of Mr Du Plessis and the Tafelkop Boerdery Trust
which were handed to me at the commencement
of the hearing.
For the sake of
clarity, I again made an order pertaining
to the condonation for
the late filing
of
the
counter-application and
the
affidavit
thereto
as
part
of
the
formal order which I issued in this matter, since it constituted a
breach of a previous court order.
[18]
In order to avoid
confusion, I will continue to refer to the parties by name as set out
above.
Succinct
summary of the background facts:
[19]
The papers filed in the
application and counter-application are voluminous, filed in two
lever arch files, with extensive factual
allegations.
The heads
of
argument
filed
on
behalf
of the respective
parties,
comprises
a number
of
legal issues
and relevant case law.
In my view, the outcome of both the application and the
counter-application is to the greatest extent going
to be determined
on
the
basis
of
legal
principles.
I
am
consequently
going to provide only a brief outline
of the relevant facts.
[20]
Mr Du Plessis was
provisionally sequestrated on 18 March 2021. Messrs de Wet and
Govender were appointed as the provisional trustees
of his insolvent
estate.
[21]
When the main
application
was issued
on 6
July
2021,
the estate of Mr Du
Plessis was still under provisional sequestration.
The aforesaid two
provisional trustees were not cited in the main application, nor was
any affidavit deposed to by them part of
the founding papers.
[22]
On
16
September 2021
First
National Bank
Limited
("FNB")
intervened
in the sequestration
application
pertaining
to the estate of Mr Du
Plessis, pursuant to which the initial order granted at the instance
of Ms ACJ Joubert was discharged and
substituted by a provisional
sequestration order at the instance of FNB.
[23]
The provisional
sequestration order of Mr Du Plessis was discharged on 2 December
2021 as a result of a settlement agreement concluded
between Mr Du
Plessis and FNB under case number 1032/2021.
The court order in
terms whereof the provisional sequestration order was discharged and
the settlement agreement made an order of
court was attached to the
further affidavit of Mr Du Plessis as "DUP1" and the
settlement agreement as "DUP2".
[24]
Mr Du Plessis is the
sole member of Full Circle.
Full Circle was
initially placed under business rescue, but on 28 May 2020 the
business
rescue
proceedings
were
discontinued
and
Full Circle was
placed
under
provisional
liquidation
by
the
North-West Division
of the High Court,
Mahikeng. A final order of liquidation was issued on 22 January 2021.
[25]
Mr Majiedt and Ms LF
Kaaba were appointed as co-liquidators of Full Circle by the Master
of the High Court, Mahikeng on 4 August
2020.
Despite the fact that
the certificate of appointment of the two liquidators were referred
and attached to the founding affidavit
in
the main
application,
only
Mr Majiedt
was
joined
as
a
respondent in the main
application. In his answering affidavit to the main application, Mr
Majiedt pointed out the aforesaid failure
to have joined Ms Kaaba as
a respondent in the main application and therefore
denied
that
the
liquidators
had
been
properly
cited.
Mr
Du
Plessis subsequently averred in paragraph 9 of his replying affidavit
that he has instructed his attorney of record
"to
add the second liquidator',
but
no such joinder of Ms Kaaba occurred.
It
was
only
in
the counter-application
of the De
Klerk
Family
Trust that they
requested the joinder of Ms Kaaba.
[26]
Full Circle was/is the
owner of the remaining extent of the farm G [....] 4 [....], district
Theunissen,
Free
State Province.
[27]
Full Circle signed
surety on behalf of Mr Du Plessis in favour of FNB. The trustees of
the Tafelkop Boerdery Trust also signed
surety on behalf of Mr
Du Plessis in favour of FNB in their capacity as such
.
[28]
FNB held three bonds
over the farm Gewonne.
[29]
On 26 May 2021 the
liquidators of Full Circle and the De Klerk Family Trust concluded
a sale agreement
in terms whereof
the farm Gewonne was
sold by the liquidators of Full Circle to the De Klerk Family Trust.
[30]
The sale agreement was
concluded by the liquidators pursuant to resolutions passed by
creditors at the first and second meeting
of creditors
held in
the
liquidated
estate
of Full Circle
on
19 May 2021.
[31]
As bond holder over the
farm Gewonne, FNB approved the sale of the farm to the De Klerk
Family Trust on 26 May 2021
.
[32]
At the beginning
of July 2021 the De
Klerk Family
Trust
attempted to take possession of the farm Gewonne.
However, Mr Du Plessis
and Hanrize Boerdery (Pty) Ltd instituted a spoliation application in
this court under case number 3128/2021,
for an order directing Mr de
Klerk to vacate the farm Gewonne and to put Mr Du Plessis and Hanrize
Boerdery in possession thereof.
The application was
premised on a lease agreement between Mr Du Plessis and Full Circle
which was signed on 15 August 2018, in terms
whereof
Mr Du
Plessis
leased the
farm Gewonne
from Full Circle
for a period of 9 years
until September 2027.
The said lease
agreement is attached to the founding affidavit filed in the main
application as annexure "J". This is
the lease agreement
which forms the subject matter of the counter-application.
Locus
standi
of
Mr Du Plessis:
[33]
Rule 6(1) determines
that every application must be brought on notice of motion
supported
by an affidavit
as to the facts upon
which the applicant relies for relief.
[34]
The aforesaid facts
which need to be set out, include the facts pertaining to an
applicant's
locus
standi.
It
is
"trite law
that appropriate allegations to establish the locus standi of an
applicant should be made in the launching affidavits
and not in the
replying affidavits".
See
Scott
v
Hanekom
1980
(3)
SA
1182
(C)
at 1188 H.
[35]
It is further trite
that an applicant should make out its case in its founding affidavit
and not in reply
or
worse,
belatedly
in argument.
See
Director
Hospital
Services
v Mistery
1979 (1) SA 626
at 636 A - B. See also
My Vote Counts NPC v
Speaker of the
National Assembly and Others
2016 (1) SA 132
(CC) at para [177].
[36]
Mr Du Plessis averred
as follows in paragraph 1.1 of the founding affidavit in the main
application:
"1.1
I am the first applicant, an adult
male and farmer…..I am also the sole
member
of the close corporation known as Full Circle…(In
Liquidation).
I am also the third
applicant in my capacity as Trustee of the Tafelkop Boerdery Trust.
..
1.2
I am also provisionally sequestrated and were .... De Wet and
Govender appointed provisional curators of my estate. This
provisional
order stands to be uplifted."
[37]
In my view it is
evident from the aforesaid allegations that Mr Du Plessis approached
court as though he had unfettered
locus
standi
to have
instituted the application at the time.
[38]
In paragraphs 3.1 to
3.4 of the answering affidavit filed by Mr Majiedt, at p.112 of the
main application,
he
opposed
Mr
Du Plessis' alleged
locus
standi:
"3.1
The
...first
applicant
acts
firstly
in
his
personal
capacity
as
first applicant and
secondly, as a trustee of the Tafelkop Trust.
.
.
3.2
On the first
applicant's version, he does not have the necessary
locus
standi
to act in
this application as an applicant as he is insolvent at present. He
has been sequestrated by the above Honourable Court.
3.3
In and because of the
fact that
concursus
creditorum
had been
established as far as the first applicant is concerned,
only the trustee of his
insolvent estate may act in any litigation in a court of law subject
to section
18(3)
of
the
Insolvency
Act,
24
of
1936
.
With
all
due
respect, no court
of law may
authorise
an applicant
to proceed
with
litigation
in his personal
capacity insofar as it is statutorily not possible.
3.4
Whereas the first
applicant also avers that he acts as third applicant, being
a
trustee
of
the
Tafelkop
Trust,
I
also
challenge
his
locus
standi
in
this
regard.
A trustee
of a Trust,
who
is sequestrated,
save
if the Trust Deed
provides
contrary
thereto, is
ipso facto
disqualified
from being a trustee of
such trust.
I
attach a copy of the Trust Deed of the Tafelkop Trust as annexure
"DM2" and refer the Honourable Court to clause 8 thereof,
more specifically
8.1.4."
The
aforesaid paragraph 8.1.4 specifically determines that a trustee
shall
ipso facto
be disqualified from being a trustee and the
position of such a trustee will be vacant should he be sequestrated.
[39]
As correctly pointed
out by Mr Pienaar during argument, Mr Du Plessis merely responded to
the aforesaid allegations by having stated
the following
in paragraph
5 of
his replying
affidavit,
at p. 231 of the main
application
:
"AD
PARAGRAPH 3.1 TOT 3.4:
5.1
My
locus
standi
in
connection with my personal capacity will be argued before the
Honourable Court by my legal representative.
5.2
As far as Tafelkop Boerdery
Trust
(sic),
I
confirm that I have already resigned.
I, however,
have
a fiduciary
responsibility until I
am removed by the Master of the Honourable Court.
The other applicants
are however before the
Honourable Court and have made confirmatory affidavits.
5.3
This
will
however
be
argued
further
by
my
legal
representative."
[40]
Mr Du Plessis
consequently
provided
no further or additional
factual allegations in
support of his alleged
locus
standi.
[41]
Mr Pienaar submitted
that in terms of section 20 of the Insolvency Act, 24 of 1936 ("the
Act"), upon the issuing of the
provisional sequestration
order
in respect
of Mr
Du Plessis'
estate
on
18 March 2021, Mr Du
Plessis was divested of his estate.
At the time of the
institution of the main application, all the property of Mr Du
Plessis
vested
in his
provisional
trustees.
Furthermore,
considering the definitions of "property", "immovable
property" and "movable property"
in the Act, it is
evident that this included his membership in Full Circle and his
rights in terms of any lease agreement.
[42]
Section 23(6) of the
Act states as follows:
(6)
The insolvent may sue or may be sued in his own name
without
reference
to the trustee
of his estate in any matter
relating to status or any right
in so far
as it does not
affect his estate
or in respect of any claim due to or against
him under this section, but no cession of his earnings after the
sequestration of
his estate, whether made before or after the
sequestration shall be of any effect so long as his estate is under
sequestration.
(My emphasis)
[43]
The interdictory
relief which
Mr Du
Plessis
is seeking
in terms
of the main application
with regard to the
transfer
of
the farm Gewonne is based on his rights and interests pertaining to
his membership in Full Circle and the 2018 lease agreement
and
therefore affects his insolvent estate.
[44]
Considering the
provisions
of
section 23(6) of the Act, Mr Du
Plessis was
consequently not entitled to have instituted the main application
in his own name
and without reference
to the provisional
trustees.
[45]
Mr De Koning submitted
during argument
that
Mr Du Plessis had the necessary
locus
standi
to have
instituted the application based on his reversionary interest in his
estate. In this regard Mr De Koning,
inter
alia,
relied on the
judgment in
Marais
v Engler
Earthworks
(Pty)
Ltd
1998 (2) SA 450
(ECO) at 453 D -
I where the following
dicta were stated:
'The
correct starting point to my mind is the fact that prior to the
sequestration of his estate, the applicant had full
locus
standi in iudicio.
His
capacity to litigate was affected by the sequestration to the extent
only provided for by the Act. In such regard, s 20(1) states
specifically that the effect of the sequestration order is to divest
the insolvent of his estate, and to vest it in the Master
until a
trustee is appointed and thereafter in the trustee. Section 23(1)
states that subject to the provisions of s 23 and s 24
(which are
irrelevant), all property acquired by an insolvent shall belong to
his estate. The Act further recognises
persona
standi in iudicio
of
the insolvent in specific circumstances: the insolvent may sue or be
sued in his own name without reference to the trustee in
any matter
relating to status or any right insofar as it does not affect his
estate or in respect of any claim due to or against
him under s 23 (s
23(6)); the
insolvent
may
for
his
own
benefit
recover
any
pension
to
which
he
may
have been entitled for services rendered
by him (s 23(7));
the insolvent may for
his own benefit recover any compensation for any loss or damage he
may have suffered by reason of any defamation
or personal injury (s
23(8)); subject to the rights of the trustee to the insolvent's
income, the insolvent may recover for his
own benefit
the remuneration or
reward for work done or for professional services rendered by him
after the sequestration of his estate (s
23(9)).
I
do not see these particular instances of
locus
standi
of an
insolvent to be exhaustive.
The
Act
nowhere
specifically
deprives
the
insolvent
of
locus
standi.
In the
absence of such provision, an insolvent retains general competency
to sue and be sued
(
Grevler v Landsdown
en 'n Ander NNO
1991
(3) SA 175
(T)
at 177H). His disability is confined to the legal consequences
arising from the fact that his estate vests in his trustee who then
has exclusive authority to exercise all rights in respect of the
property comprising the estate.
The
insolvent
nevertheless
has
a
real
reversiona
ry
interest
re
g
ardin
g
the
estate
(Mears
v
Rissik
and
Others
1905
TS 303
at 305;
Nieuwoudt
v
The Master and
Others
NNO
1988
(
4
)
SA
513
(
A
)
at 524H--525G)."
(My emphasis)
[46]
Mr Zietsman
referred
to the following
passage
from
Mars:
The
Law of
Insolvency in South Africa,
10
th
Edition, at paragraph 16.12.1, p. 390 top. 391
:
"With
regard to assets that vest that in an insolvent's
trustee,
the latter is primarily
the person
to take action,
but,
if he refused
to do so
,
whether
bona
fide
or ma/a
fide,
the insolvent is
not without remedy.
He
cannot, it is true, compel
his
trustee
to take
action
at any
rate without
offering
him
security
for the costs of the
action, but he may himself under such circumstances take action,
and need not obtain
the leave
of
the
court
to do
so.
In
all
such
cases
his trustee
must be
i
oined
as co-plaintiff
in the suit if
willing or as co-defendant
if
unwilling."
(My emphasis)
[47]
However, as contended
by both Messrs Zietsman and Pienaar, it cannot be considered to have
been Mr Du Plessis' case that the provisional
trustees declined to
institute the main application, since there is no such allegation in
the founding affidavit.
Furthermore, the two
provisional trustees had not even been cited in the application.
They consequently
submitted that Mr Du Plessis cannot
rely
on his
so-called
reversionary
interest
in his estate
in the circumstances.
[48]
Mr De Koning contended
in his heads of argument, which contention he repeated during his
oral argument, that the two provisional
trustees
"by
virtue of
section 18(3)
of the
Insolvency Act... could
not have been
cited without the authority of the court, first had and obtained, and
that the provisional trustees themselves could
not have
either consented
to be
joined,
or refused
to be cited, the
Act simply denies them the powers to do so."
[49]
Section 18(3) of the
Act reads as follows:
"18
Appointment of provisional trustee by Master
(3)
A provisional trustee shall have the powers and the duties of a
trustee, as provided in this Act, except that without the authority
of the court or for the purpose of obtaining such authority he shall
not bring or defend any legal proceedings and that without
the
authority of the court or Master he shall not sell any property
belonging to the estate in question. Such sale shall furthermore
be
after such notices and subject to such conditions as the Master may
direct."
[50]
In my view the
aforesaid contention
by
Mr De Koning is definitely not substantiated by section 18(3) of the
Act. The wording of the said section is crystal clear.
What a provisional
trustee is not allowed to do without the authority of the court or
for the purpose of obtaining such authority,
is that he shall
not
bring
or
defend
any legal proceedings.
It does not mean that a
provisional trustee may not be cited as respondent/defendant in legal
proceedings; he is only prohibited
from defending same without leave
of the court.
[51]
Mr De Koning further relied on the well-known judgment with regard to
an insolvent's reversionary interest in his estate in
Mears
v Rissik. MacKenzie N.O. and Mears' Trustee
1905
TS 303
at 305:
"Now,
no doubt the general rule is that an unrehabilitated insolvent
cannot, over the head of his trustee, bring actions connected
with
his estate
...
The reason of the rule
is that his estate has been taken out of him and vested in his
trustee; and that therefore the person to
deal with that estate, to
administer it, to sue in respect of it, and to defend actions
concerning it, is the trustee, and not
the insolvent. But from the
fact that the insolvent is under this disability, it does not follow
that he has no rights whatever
regarding the estate. In my opinion he
has a very real reversionary interest in it. The law provides that if
there is any residue
after paying the debts it is to be handed to the
insolvent. Not only so, but it is to his interest that as many assets
as possible
shall be brought into the estate, and the debts reduced
to their proper limits. He has an interest in seeing that that is
done.
An asset may suddenly become valuable which has been considered
worthless, or he may have a legacy left to him which may enable
him
to clear off all his liabilities. Apart from that it is to the
interests of the insolvent that his assets should be increased
and
his liabilities reduced, because in that way the stigma of insolvency
rests
less
heavily
upon
him;
and
when
he
applies
for
his
rehabilitation he is in a better
position than if he had a very large margin of unpaid debts.
Therefore, from whatever standpoint
we regard it the insolvent has a
very real interest in the administration of his estate. As I have
said, generally the trustee
is the person to take action in matters
connected with the estate;
but
if the trustee will not do so
,
or whether bona fide or mala fide does not see his way to take
action, is the insolvent on that ground to be without remedy? I
should say upon general principles he ought not to be; the law should
provide some remedy." (My emphasis)
[52]
It is evident from the
aforesaid passage that for purposes of relying on a reversionary
interest, an insolvent has to make an averment
with
regard
to the stance of the
trustee(s).
Mr
De Koning
also relied on the
judgment of
Nieuwoudt
v The Master
1988 (4) SA 513
(AD). The court, at 524 H to 525 C of the judgment, referred to the
aforesaid quotation from the
Mears-judgment
with approval.
However, the court also held as follows at 524 G:
"Reeds
sedert
die vorige
eeu word
hier
te lande
sender
teenspraak aanvaar dat
'n insolvent
'n
resterende
belang
in sy insolvente
boedel
het.
Daarom
kan hy stappe neem ter
inwinning van 'n bate, bestryding
van 'n vordering,
ensomeer
indien
die kurator dit nie wil doen nie.
Gewoonlik
word egter
vereis
dat die
kurator as
party
gevoeg
moet
word."
[53]
Mr De Koning
heavily
relied
heavily
on the judgment
in the matter of
De
Polo and Another v Dreyer and Others
1991 (2) SA 164
(WLD)
for
purposes
of making
out
a
case
regarding
the
locus standi
of
Mr Du Plessis, especially based on the following
dicta:
"Now
this
means
in effect
that
the
insolvent
cannot
sue
as
of
right
and
it seems to be the
position that a refusal must be pleaded and proved and, ordinarily,
that
refusal
should
have
occurred
prior
to
the
institution
of
proceedings. The question is of
course whether that omission, or those omissions,
can be cured."
(1761
-
177A)
"Now
the next question of course is whether it is right to say that the
present waiver or refusal would be a juridical fiction
if it could be
held to have taken place prior to the institution of proceedings, or
whether the attitude taken up by the trustees
now becomes effective
and validates the proceedings already instituted. Mr
Grbich
referred to the curing of a defect
ex
post
facto
and referred to certain textbooks and decisions of
the Courts. For example, in
Fitzgerald
v
Green
and
Steytler
NO
1913 CPD 403
, an insolvent was claiming a
declarator
in a
matter relating to succession. His trustee had not been made a party
to the suit but was subsequently joined as a defendant
and agreed to
submit to judgment subject to his right to claim the proceeds of the
action from the plaintiff for the benefit of
the insolvent estate.
This was held to 'cure the defect in the plaintiff's status as an
insolvent'.
I
regard this decision as relating rather to
locus standi
than
joinder. It had the same effect as in the present case because there
the trustee made it clear that he had no interest in the
litigation,
and that entitled the insolvent to proceed with the matter."
(177H - 178A)
"In
my view the question of the effect of the subsequent consent and
waiver (regarded as a refusal) and joinder is procedural
and a matter
of judicial discretion.
There is no question
of a fiction
that
at the time
summons
was issued
the first
plaintiff
was
entitled
to
sue
by
virtue
of
his
trustee's
refusal
to do so. It is
recognised that he had no
locus
standi
and that, on
a proper construction of s 23(6), he was entitled to sue neither in
his own name nor on behalf of the insolvent
estate.
However,
whether
a true waiver was
competent or not, it is clear, as I have said, that the trustees will
not now take action on behalf of the estate
and in my view, that
being so, it is right to allow the first plaintiff to do so."
(179B
-
D)
[54]
Mr De Koning
consequently submitted that the "omission" to have joined
the provisional trustees and/or to assert and prove
the provisional
trustees' refusal to take the legal action concerned, is curable.
He submitted that I
have a discretion to condone the omission and that I should, in the
circumstances of this matter, refuse to
allow Mr Du Plessis to be
non-suited
on
technical
grounds.
He submitted that I
should especially do so in view of the cumulative effect of the
following facts and circumstances:
1.
The prohibition in
section 18(3) of the Act.
(I have already dealt
with
this
aspect
and concluded
that
it
does
not have any merit.)
2.
The discharge of the
provisional sequestration order on 2 December 2021
.
3.
The concomitant result
of the discharge of the provisional order, particularly that Mr Du
Plessis' estate is no longer
under sequestration and
he no longer an insolvent.
4.
The interest of
justice, particularly the fact that Mr Du Plessis could notially
commence a case again tomorrow (like it was stated
by Morris AJ in
De
Polo's-case
at
177 D).
[55]
At a very late stage of
the hearing of the application, during the hearing of Mr De Koning's
argument in reply, Mr De Koning indicated
that it has daunted upon
him that in terms of prayer 1 of the counter-application the two
provisional trustees have/will in fact
now
been
joined
as
respondents
in
the
proceedings.
He
furthermore
pointed out, correctly so, that in terms of paragraph 30 at p. 24 of
the affidavit of the De Klerk Family Trust filed
in support of the
counter-application, both the application and the counter
application have now indeed been served upon the
provisional
trustees.
In
this regard the following is stated in paragraph 30:
"The
counter-application, comprising of this affidavit as well as the
notice of counter-application, together with a copy of
the papers
filed in the main application, shall be served electronically on the
provisional trustees and thereafter be dispatched
to the sheriff for
service on the provisional trustees in terms of the provisions of the
Uniform Rules of Court."
[56]
Similarly, he pointed
out that the replying affidavit filed in the counter-application has
also been served on the provisional trustees
by means of e-mail, as
evident from a copy of the said e mail which appears at p. 226
of the replying affidavit.
[57]
After some discussions
Mr Pienaar conceded that it can and
should be accepted that
the mentioned papers have in fact been served upon the provisional
trustees as alleged above.
[58]
Mr De Koning
consequently submitted that the fact that the papers had indeed been
served upon the two provisional trustees, that
they therefore bear
knowledge of the main application and the counter-application, but
that they did not respond to it, are additional
reasons why it will
be appropriate and in the interest of justice not to non-suit Mr Du
Plessis on the basis of an alleged lack
of
locus
standi.
[59]
In my view, the
following
considerations are
essential:
1.
I have already
indicated that Mr Du Plessis initially
approached court as
though he is entitled to do so with no restriction on his
locus
standi,
irrespective
of the fact that at the time when the application was instituted, his
estate was under provisional sequestration.
2.
I have already dealt
with the fact that Mr Majiedt, in his answering
affidavit
to the main
application,
raised
the
issue of Mr Du Plessis'
lack of
locus
standi,
both in his
personal capacity and in his capacity as a trustee of the Tafelkop
Boerdery Trust.
3.
I have also dealt with
Mr Du Plessis'
response
to the
aforesaid
in the replying affidavit filed in the main application, where he
merely indicated that the issue pertaining to his personal
locus
standi
will
be
argued
in court.
No
attempt was made to
provide any evidence in support of his alleged
locus
standi.
Not
a single allegation
was
made to indicate
that
he was relying on his reversionary
interest for purposes
of
locus
standi.
In
addition,
no
steps were taken to join the two provisional trustees.
To the contrary, up to
that point Mr Du
Plessis
had not
even
attempted
to serve
any
of the papers filed in
the main application upon the two provisional trustees, despite the
fact that he and the trustees of the
Tafelkop Boerdery Trust were
dominis litis
in
the main application.
4.
After the institution
of the counter-application, Mr Du Plessis filed an answering
affidavit in response thereto.
The said affidavit is
dated 28 October 2021, at which date Mr Du Plessis' estate was still
under provisional sequestration. Despite
the previous
questions
raised
pertaining
to the lack of his
locus standi,
he
completely failed to make any
allegation in the said
answering affidavit with regard to the basis of his
locus
standi.
There
is also no indication that the said answering affidavit was served
upon the two provisional trustees.
5.
After
the De Klerk
Family
Trust
filed
its replying
affidavit
in the
counter-application, Mr Du Plessis requested special
leave to file his
further affidavit, which leave I granted, as already indicated
earlier in the judgment.
6.
In the further
affidavit (which was presumably when Mr De Koning came into the
picture) were attempts made to proverbially save
the day with regard
to the issue of Mr Du Plessis'
locus
standi.
In
this regard the following averments were made at paragraphs 8 to 12
of the further affidavit, p.
242 to p. 243 of the
counter-application:
"8.
The
aim of the main application was to protect my rights as sole member
of the Close Corporation, .... (the CC), to the free residue
that I
believe there would be in the winding-up of the CC, and to preserve
my rights as lessee of the farm Gewonne, which it is
common cause is
the only asset of the CC.
9.
As
can be gleaned from the papers in the main- and counter
applications, my estate at the time the main application was
launched,
was provisionally sequestrated, and I suffered the
concomitant consequences thereof pertaining to
locus standi.
10.
The
provisional sequestration order was however discharged on 2 December
2021,
when the matter
between
....
FNB
and
myself,
... was
finally
settled,
and
the provisional
sequestration
order
as
a part of the
settlement
was
discharged...
.
11
.
In
as much as my
locus
standi
to have
launched the main application, and my
locus standi
to have
defended the counter application, was (so I have been advised),
compromised, if not lacking, and also challenged on
account of the
provisional order and in as much as the discharge of the provisional
sequestration order had the effect of reversing
the effects of that
order, and restoring my status, I request that I be allowed to
proceed in my pursuit of protecting and preserving
my rights alluded
to.
12.
Insofar
as same is necessary, I hereby ratify, and retrospectively confirm,
and condone all I had done in this litigation while
the provisional
sequestration order, with the adverse consequences thereof, was
extant."
7.
Only then, at that
extremely
late
stage of the proceedings,
and after he was
forewarned at an early stage of the proceedings
regarding
his
lack
of
locus
standi,
were
allegations
made seemingly in support of Mr Du Plessis' attempt to place reliance
on a reversionary interest for purposes
of
locus
standi.
However,
what
was
still lacking, and
glaringly so, was "a reference to the trustees".
8.
The absolute last
attempt to save the fatally defective
locus
standi
of Mr Du
Plessis, was the statement in paragraph 12, quoted above, that Mr Du
Plessis ratifies, retrospectively confirms
and
condones
all
he
had
done
in
the
application and the
counter-application whilst his estate was still under provisional
sequestration. However, this statement is
legally unfounded and
incompetent.
Mr
Du Plessis cannot condone and ratify the litigation whilst he was an
insolvent.
It
is something which the provisional trustees had to ratify, which
could and should have been done at the time when they still
held
office. Mr Du Plessis, however, took no steps at that stage to obtain
such ratification from the provisional trustees.
[60]
In my view there are
essential differences between the facts in the
De
Polo-judgment
and
the present matter.
1.
The
De
Polo-judgment
dealt
with an action where a special plea was filed by the defendants
concerning the
locus
standi
of
the
first
plaintiff.
The
special
plea,
inter
alia,
stated
that the estate of the
first plaintiff was sequestrated, the effect whereof in terms of
section 20
of the
Insolvency Act, divested
the first plaintiff of his
estate, which vested in the Master and thereupon in the trustee.
The first plaintiff
then filed a replication
wherein
it
was
averred
that
the
trustee
of
his
insolvent
estate has consented in writing to the first plaintiff having entered
into the agreement which was the subject matter
of the action, and
furthermore, the said trustee has in writing
waived
any
rights to
join
in such action,
or be joined as a party
therein, abides by the decision of the court and agrees to be bound
by such decision.
It
was then further stated in the replication that insofar as the
plaintiff might have lacked any
locus
standi,
it has been
cured by the intervention of the trustee.
Subsequently,
and without opposition, the trustees in the estate were joined as
fourth defendants and were represented by the attorney
and counsel
acting for the plaintiffs.
2.
Then, very importantly,
the first plaintiff called a witness in regard to the issues raised
in the special plea and replication,
being one Mr Bowman who was one
of the joint trustees appointed by the Master.
Mr Bowman
confirmed
the affidavits which
had been filed in relation to consent, waiver and the trustees'
undertaking. He further presented evidence
with regard to his
motivation for the said consent, waiver and undertaking.
[61]
In further applicable
case law which I considered, in which judgments reference was made to
and/or reliance was placed on the
De
Polo-judgment
,
there was also some form of evidence of what the stance of the
trustee(s) was.
In
the present matter, which is
an
application,
it
is
trite
that
the
affidavits
constitute
both
the
pleadings
and the evidence.
However, there is no
evidence before me with regard to the stance of the trustees (when
they still held office) and also, very importantly,
there is no
indication that Mr Du Plessis at any stage attempted to obtain such
evidence and/or a form of consent from the provisional
trustees.
[62]
The mere
fact
that the
De Klerk
Family
Trust
ensured
that
a copy of the main
application and the counter-application were served upon the
provisional trustees (excluding the answering affidavit
to the
counter-application and the further affidavit of Mr Du Plessis, which
would have been the obligation of Mr Du Plessis to
see to it that it
be served upon
the
provisional trustees)
and the fact that they
did not in any way whatsoever responded thereto, cannot, in my view,
be considered to be "evidence"
upon which I can or
should exercise my
discretion, if any, in favour or Mr Du Plessis; especially not when
considered against the other facts and circumstances
set out above.
[63]
One should also be
mindful that waiver needs to be proven and is never
presumed.
In
Haupt
t/a
Soft
Copy
v
Brewers
Marketing
Intelligence
(Pty)
Ltd
and Others
2005
(1) SA 398
(C) at 4178 - D the relevant principles were stated as
follows:
"Waiver
must always be strictly proved and is never presumed. The position is
succinctly
stated
by
Nienaber
JA
in
Road
Accident
Fund
v
Mothupi
2000
(4)
SA 38
{
SCA
)
([2000]
3 All SA 181)
at para [19]:
'Because
no one is presumed to waive his rights (cf
Ellis
and Others v Laubscher
1956
(
4
)
SA 692
(
A
)
at 702E - F), one, the
onus
is on the party
alleging it and, two, clear proof is required of an intention to do
so
(Hepner
v
Roodepoort-Maraisburg
Town
Council
1962
(
4
)
SA
772
(
A
)
at 778D - 779A;
Borstlap
v Spangenberg
en Andere
1974
(
3
)
SA
695
(A)
at 704F -
H).
The
conduct
from
which
waiver
is
inferred,
so it has
frequently
been
stated,
must
be
unequivocal,
that
is,
consistent with no
other hypothesis.'
The
failure on the part of the first respondent to assert its copyright
does not, in my view, amount to conduct from which an intention
to
waive and abandon those rights can be inferred."
[64]
Consequently, and
insofar as I may have a discretion, the facts, circumstances and
principles set out above, necessitates me to
exercise my discretion
against Mr Du Plessis.
[65]
The last aspect I
consider necessary to address with regard to the
locus
standi
of Mr Du
Plessis, is the submission by Mr De Koning that
the fact that
the De
Klerk
Family
Trust
itself
cited
Mr
Du Plessis in the
counter-application, clothed him with
locus
standi,
moreover so
because the two provisional trustees were also joined and cited.
[66]
I cannot agree with the
aforesaid submission.
Mr Du Plessis was the
first applicant in the main application.
Where the De Klerk
Family Trust instituted a counter-application, it would have been
improper
of
them
not
to
have
cited Mr Du
Plessis
merely
because it is their
opinion that he did not have
locus
standi.
The
fact that they persisted
with their
stance
that he did not
have
locus
standi,
is,
in my view, very evident from the wording of prayer 1 in the
counter-application where
it was specifically
stated that the
counter-application was
directed against the "second to fifth respondents
in
the
counter-application";
hence,
they
specifically did
not
acknowledge
the
first
respondent,
Mr
Du
Plessis.
In
his
stead
they requested
the
relief against
the
provisional
trustees
of Mr Du Plessis' insolvent estate.
They also specifically
stated in paragraph 25 of the affidavit filed in support of the
counter application, at p. 22 of the
counter-application, as
follows:
'The
seventh
respondent
and I
are advised
that the provisional
trustees
of Mr du
Plessis'
insolvent
estate
and
the
liquidators
of
Full
Circle
have
an
interest in the relief
which the De Klerk Family Trust seeks in terms of the counter
application in respect of the 2018 lease
agreement."
[67]
The joinder of the two
provisional trustees to the counter
application does not
have the effect that they can be considered to have
mutatis
mutandis
been
joined in the main application.
Conclusion
re
the
locus standi
of Mr Du Plessis:
[68]
I consequently
find that Mr Du Plessis
did not have
locus
standi
to have
instituted
the
main
application.
For
the
sake
of completeness,
I deem it necessary to
record that the parties were
ad
idem
that since the
settlement between FNB and Mr Du Plessis, the Tafelkop Boerdery Trust
had no further interest in these proceedings.
The parties were
furthermore
ad idem
that the
financial
interest
which
the Tafelkop
Boerdery
Trust
might
have had in these
proceedings
at
the time when
the
main
application was
instituted, was in any event not of the nature to have clothed them
with
locus standi
to
have instituted the main application.
[69]
The main application
consequently
stands
to be dismissed.
[70]
I
further
find that
Mr
Du
Plessis
did
not
have
locus
standi
to
have opposed the
counter-application.
[71]
The
merits
of
the
counter-application
are
consequently to
be considered on an
unopposed basis.
Merits
of the counter-application on an unopposed basis:
the lease agreement. valid or
void:
[72]
It is common cause that
on 4 November 2013 a Continuing
Covering Bond,
87040/2013, was registered as a third mortgage bond ("the third
mortgage bond") over the farm G [....]
4[....], owned by Full
Circle, by the Registrar of Deeds in favour of FNB.
[73]
It is also common cause
that clause 3.3 of the third mortgage bond determines as follows:
"The
mortgagor shall not mortgage or in any way alienate or further
encumber the mortgaged
property,
or any part thereof,
nor shall the
mortgagor let
or
give up occupation of
the
mortgaged
property
or any
part
thereof without
the
prior
written consent of the mortgagee."
(My emphasis)
[74]
It is furthermore
common
cause
that
the
2018
lease
agreement was
concluded
between
Full Circle and Mr Du
Plessis
on 15 August 2018,
hence, after the third mortgage bond was registered.
[75]
It is also common cause
that FNB did not consent in writing thereto prior to the conclusion
of the 2018 lease agreement.
[76]
Mr De Koning submitted
that the conclusion of the 2018 lease agreement at odds with the
aforesaid requirement of prior written consent,
merely constituted a
breach of the loan agreement and/or the terms
of the third mortgage
bond,
resulting
in FNB being entitled
to exercise its contractually agreed remedies pertaining to breach of
contract.
[77]
Messrs Zietsman and
Pienaar contended that any agreement concluded contrary to the
provisions of the aforesaid clause 3.3 of the
third mortgage bond, is
and will be unenforceable.
[78]
In his heads of
argument
and
also in his oral arguments,
Mr
Pienaar relied on the
judgment in
Oosthuizen
v Mari
[2015] JOL 32431
(GJ), in which matter the relevant mortgage bond over the applicable
property determined that the mortgaged property or any part
thereof
shall not be let for a longer period than 3 consecutive months
without the written consent of Nedbank. The mortgagor, however,
concluded a lease agreement contrary to the aforesaid provision, in
that the required written consent of Nedbank was not obtained.
The court in its
judgment,
inter
alia,
referred
to and agreed with the
following case law and the enunciated principle:
1
"[14]
In
Cooper supra,
and with reference to,
inter alia,
the
repealed and notorious Native Urban Areas Act;
African United
Domestic Worker's Club v London
and Ker; Jones v
Siebert;
Kely
v Right-Kok;
Rall
v Bester;
and
Camay v Bhayat;
it states that
if
the lettin
g
of the
p
ro
p
ert
y
re
q
uired the consent of an
official
and
his
consent
had
not been
obtained
the lease
will
be null and void.
[15]
In
Hissaias
v
Lehman
and
Another,
the
applicant
sold
an
erf
to
the respondent.
A
clause
in
the
deed
of
sale
provided
that
the
purchaser
undertook not to cede his rights
under the agreement or to sell or lease the property
without
the written consent of the seller
which consent was not to be unreasonably
withheld.
Whilst the property
was still registered in
the name of the applicant, the second respondent,
without
obtainin
g
the
re
q
uired
consent,
leased
the
p
ro
p
ert
y
to
the
first
res
p
ondent
and placed
him
in
occupation
thereof. In granting an application for ejectment,
the Court, said
:
'
As
dominus he has the
right of possession and occupation of it against all the world save
and so far
as
he
has parted with his right to such possession and occupation. In an
agreement such as that contained in this deed of sale, the
owner in
effect says to the purchaser 'I give you immediate occupation but I
will give no right of occupation to any person substituted
for
yourself in the occupation unless this is done with my written
consent'. If
a
person is
substituted
without
such consent
that person,
as
it
appears to me, is
in
unlawful
occu
p
ation
and in
a
position analogous
to that of
a
trespasser
.
'
In
Absa Bank v Sweet and Others,
the Court said:
'It
is now accepted that
a
mortgagor may,
in
the absence of an
ex
p
ress
a
g
reement
to
the
contra
ry
,
grant
a
lease of mortgaged
property without the consent of the mortgagee but he cannot by such
lease confer any rights which will conflict
with those of the
mortgagee (see Wille Mortgage and Pledge 3rd ed at 160; Cooper's
South African Law of Landlord and Tenant at
22; Dreyer's Trustee v
Lutley
(1884) 3
SC
59
at 61; Henderson
Consolidated Corporation Ltd v Registrar of Deeds and Receiver of
Revenue
1903 TS 661
at 675) ..."
(My
emphasis)
For
the aforesaid reason and also other reasons expressed in the
judgment, the court concluded at para [21] of the judgment that
the
lease agreement was invalid.
[79]
Mr de Koning submitted
that the context of the
Oosthuizen
judgment was
different to that of the matter
in
casu.
In the
alternative
he
submitted
that
should I find that it
is indeed applicable
to
the
facts
of
the
present
matter,
it
was
decided wrongly and
should not be followed. I cannot agree with the aforesaid
contention.
In my view
the relevant principle
enunciated in the
judgment is very much applicable to the present matter and I can
see
no
reason
why
I
should
not
follow
it,
since
I
am respectfully in
agreement with it.
Conclusion
re
the 2018 lease agreement:
[80]
In my view the 2018
lease agreement is consequently void and/or unenforceable and the
counter-application is to be granted in respect
thereof.
Further
issues:
[81]
Due to my finding with
regard to the lack of
locus
standi
of Mr Du
Plessis and the consequent dismissal of the main application, it is
not necessary to adjudicate any of the further issues
raised in
.
the
papers.
Costs:
[82]
With regard to the main
application, there is in my view no reason why the costs should not
follow the outcome. The trustees of
the Tafelkop Boerdery Trust
remained part of the proceedings throughout
and
consequently
I
agree
with
the
submissions
of Messrs
Zietsman
and Pienaar
that they
should
be included
in the order as to
costs.
[83]
The costs of the
counter-application are also to follow the outcome thereof.
The trustees of the
Tafelkop
Boerdery
Trust were not part of
the counter-application. The first respondent in the counter
application, Mr Du Plessis, is consequently
to pay the costs of the
counter application.
[84]
The costs occasioned by
Mr Du Plessis' application to file a further affidavit in the
counter-application, are also to be paid by
him.
[85]
The application by the
sixth and seventh respondents in the main application,
being the trustees of
the De Klerk Family Trust, for leave to be joined as respondents in
the main application, was necessitated
by the first to fourth
applicants' failure to have cited them as respondents from the
inception of the main application. They are
consequently
to bear the costs of
the said application
to
be joined.
Order:
[86]
For the aforesaid
reasons I issued the order quoted in paragraph 1 of the judgment.
C.
VAN ZYL, J
On
behalf of the first to fourth applicants
in
the main application/first respondent
in
the counter-application:
Adv
LW de Koning SC
Assisted
by:
Adv J Lubbe
Instructed
b
y
:
EG Cooper Majiedt Inc.
BLOEMFONTEIN
On
behalf of the first respondent in
the
main application/second respondent
in
the counter-application:
Adv
P Zietsman SC
Instructed
by
:
Hendré
Conradie Inc.
(Rossouws
Attorneys)
BLOEMFONTEIN
On
behalf of the sixth and seventh
respondents
in the main
application/first
and second applicants
in
the counter-application:
Adv
CD Pienaar
Instructed
by
:
Symington
& de Kok
BLOEMFONTEIN