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[2023] ZAFSHC 181
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Roets N.O and Others v Trustees for the Time being of the Henrico Trust (4428/2022) [2023] ZAFSHC 181 (16 May 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
Case number: 4428/2022
In
the matter between:
JOHANNA
JACOMINA ROETS N.O.
First
Applicant
DIRK
DANIEL ROETS N.O.
Second Applicant
ANNA
CORNELIA VAN ROOYEN N.O.
Third Applicant
[In
their capacities as trustees of the Pieter
Hendrik
Bam Testamentary Trust also known
as
the Johanna Jacomina Roets Testamentary
Trust,
MT[….]]
And
THE
TRUSTEES FOR THE TIME BEING OF
Respondent
THE
HENRICO TRUST (IT 1756/01)
HEARD
ON:
01
DECEMBER 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 16 MAY 2023 at 16H00.
[1]
The applicants as trustees of Pieter Hendrik Bam Testamentary Trust
also known as
the Johanna Jacomina Roets Testamentary Trust (the
Trust) which owns the farm Louis Meyer situate at number 1[…],
Harrismith
in the Free State Province (the farm) seek an order
directing the respondent to remove all its cattle and property from
the farm
within 14 days of the date of this order and to restore the
said farm to the Trust in the same good order and condition as it was
when received by the respondent.
[2]
At the inception of the Trust, the trustees were the first applicant,
Petrus Jakobus
Venter (Venter) and the late Martha Johanna Bam duly
appointed on 25 September 2020. On 6 June 2022 Venter and Bam were
replaced
with the second and third applicants respectively.
[3]
The respondent’s cattle occupy a portion of the farm in terms
of a cattle grazing
lease agreement. The circumstances under which
the grazing lease agreement was concluded including its provisions
are in dispute.
[4]
It is the applicants’ case that initially, the respondent
grazed its cattle
on the farm in terms of an oral agreement concluded
between the respondent represented by Hermanus Bernadus Swart (Swart)
and the
first and second applicants’ son Dirk Daniel Roets
(Roets junior) in terms of which the respondent would graze its
cattle
on the farm for the winter season of 2021 in exchange of
providing transport services to Roets junior until 1 September 2021
whereafter,
the respondent would be obliged to pay rental in that
regard.
[5]
The oral agreement was extended till end February 2022 then on 1
March 2022 the Trust
sold the farm to Sandvelt Trust (Sandvelt).
Transfer of the farm was registered on 8 July 2022 and occupation of
the farm was supposed
to be given to Sandveldt on 01 September 2022
however, despite the expiry of the oral agreement and the respondent
having been
timeously informed of the sale of the farm the respondent
has refused to remove its cattle and its belongings from the farm as
a result, the Trust has been unable to hand over occupation of the
farm to Sandveldt. Instead, the respondent relies on a written
lease
agreement (the lease) signed by first applicant and Swart on 19
November 2021 in terms of which the respondent leased the
portion of
the farm for a period of three (3) years ending in August 2024.
[1]
[6]
The applicants dispute the validity and enforceability of the lease
on the grounds
that the first applicant signed the lease
“thoughtlessly,” she was not aware that she was signing a
lease, she had
no intention to bind the Trust with a lease as that
would have impeded the sale of the farm and, pursuant to the
conclusion of
the lease, the first applicant was informed by the
erstwhile co-trustees that she and also Roets junior were not
entitled to “haphazardly”
conclude lease agreements which
bind the Trust without the knowledge and consent of the co-trustees.
In order to enable the respondent
to obtain alternative grazing land
the oral agreement was ratified and extended to 31 August 2022 while
the written lease was deemed
to be invalid and unenforceable.
[7]
The applicants further state that the respondent was duly informed
about the invalidity
of the written lease despite. A series of
correspondences (about fifteen (15) letters and emails)
[2]
was exchanged between the respective attorneys from 01 February 2022
to 23 August 2022 in an attempt to resolve the matter but
they did
not yield any favourable result as the respondent insisted that the
applicants should honour the lease.
[8]
The respondent’s answering affidavit is deposed to by Smit. At
para 1.5, he
declares that:
“
I depose to
this affidavit in my capacity as duly authorized Trustee of the
Henrico Trust
.”
And at para 1.6. he
states thus:
“
I am duly
authorized to oppose this application and to depose to this affidavit
on behalf of my fellow Trustees as more fully appears
from the
resolution which is annexed hereto as
Annexure “OA1”
.
[9]
Subsequent to the filing of the answering affidavit, the respondent
filed an application
for leave to amend the answering affidavit by
replacing the resolution annexed to the answering affidavit as
Annexure “OA1”
with a resolution marked as Annexure “X”.
According to the respondent, Annexure “OA1” refers to the
authorization
to conclude the lease agreement and not to the
authorization to oppose these proceedings therefore it was
erroneously attached
on the answering affidavit. The correct
resolution in this regard is Annexure “X”.
[10]
I hold the view that this amendment does not constitute a substantial
amendment of
the answering affidavit, it is merely intended to cure
the error of referring to an incorrect document. The applicants are
thus
not prejudiced by the replacement of annexure “OA1”
with Annexure “X.” I consequently determine this
application
in favour of the respondent, the relief sought is
accordingly granted.
[11]
The application is opposed on the grounds that it is clear from the
papers that there is a material
dispute of facts relating to the
circumstances under which the written lease was concluded. It is the
respondent’s case that
the applicants’ contention that
when the first applicant signed the lease she was not aware that she
was signing a lease
and that she also had no authority to bind the
Trust is a mere fabrication aimed at avoiding liability to Sandveldt
for failing
to hand over occupation of the farm.
[12]
The respondent states that the oral agreement concluded with Roets
junior was not in respect
of cattle grazing on the farm but on Roets
junior’s maize crops. The agreement was indeed concluded in
April 2021 for the
winter period in return for the transport services
provided by the respondent to Roets junior and later extended to 1
September
2021. On 12 November 2021 Swart presented a written lease
agreement to the first applicant in terms of which the respondent
leased
the farm for a period of five (5) years. On the request of the
fist applicant the duration of the lease was amended to a period
of
three (3) years with a proviso that the rental due will escalate by
7% annually. The lease was duly signed by the first applicant
in the
presence of both Swart and the second applicant on 19 November 2021.
Furthermore, the erstwhile co-trustee the late Bam,
was also present
when the terms of the lease were discussed. There is accordingly a
clear dispute of facts on this issue which
cannot be resolved on the
papers, the applicants should have proceeded by way of action
proceedings and not application proceedings.
The application ought to
be dismissed on this score.
[13]
The respondent further states that the Trust is estopped from denying
that the first applicant
was authorised to sign the lease agreement
for the reason that: the Trust represented by words and conduct that
the first applicant
was duly authorised to do so and that the
trustees authorised the conclusion of the lease agreement; the
respondent was also informed
by the first applicant that she was
authorised to conclude the lease agreement on behalf of the Trust and
at no stage was the validity
of the lease disputed the respondent was
not only permitted to occupy the leased portion of the farm the
applicants accepted the
rental payments for the first 12 months of
the lease agreement and even requested the respondent to make an
advance payment in
the amount of R50 000.00 in respect of the 6
months of following year on 17 January 2022.
[14]
In the alternative, the respondent contends that
the first applicant had the ostensible authority to bind
the Trust in
terms of the lease in that, there was presentation by words or by
conduct of her authority, the representation was
made by the Trust in
the form such that the principal would reasonably have expected that
outsiders would act on the strength of
it. The respondent reasonably
relied on the said representation and has been consequently
prejudiced by the reliance on the representation.
[15]
On the facts of this matter, the existence of the written grazing
lease agreement is not in dispute.
The applicants have provided
contradictory versions for disputing its validity and enforceability.
In the founding affidavit it
is alleged that the fist applicant was
not aware that she was signing a lease agreement whilst it is also
averred that it was brought
to the attention of the first applicant
that the lease was invalid due to lack of authorization by the
co-trustees. On the other
side, the respondent’s opposing
affidavit raises a genuine and
bona fide
dispute of facts with
regard to the circumstances which gave rise to the conclusion of the
lease namely that; the first applicant
was aware that she was signing
a lease agreement and she signed with the intention to bind the Trust
as she was duly authorized
to do so.
[16]
It was held in
National
Director of Public Prosecutions v Zuma
[3]
at
para 25 that:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the Plascon-Evans rule that where in motion
proceedings disputes of facts arise on the affidavits,
a final order
can only be granted only if the facts averred in the applicant’s
(Mr Zuma) affidavits, which have been admitted
by the respondent
(NDPP), together with the facts alleged by the latter, justify such
order. It may be different if the respondent’s
version consists
of bold or uncreditworthy denials, raises fictitious disputes of
fact, is palpably implausible, far-fetched or
so clearly untenable
that the court is justified in rejecting them merely on the papers.”
[17]
Based on the array of the correspondences exchanged between the
parties’ legal representatives
(Annexures “FA7.1”
to FA7. 15”) it is clear that at the time the applicants
launched these proceedings they were
well aware that a material
dispute of facts might arise in relation to these disputed facts,
they nevertheless choose to proceed
with this matter by way of motion
proceedings confining themselves to have the prevailing disputes of
facts decided on the affidavits
alone.
I
hold that the dispute
of facts
raised by the respondent are worthy to be accepted for the
determination of the issues between the parties.
[18]
In this matter the respondent’s version that the lease is
extant is also corroborated by
the written lease agreement, annexure
“FA5” duly signed by the first applicant and it provides
thus:
[19]
Ex facie
the provisions of clause 3, makes it clear that the
respondent is entitled to graze its cattle on the farm until 31
August 2024.
[20]
The principle applicable where the validity of a contract is disputed
by a party on the grounds
that the signatory was not aware of the
contents of the agreement when it was signed is trite: A person who
signs a contract is
taken to be bound by what appears above their
signature whether or not they had read the agreement or not before
signing it and
would thus be liable to perform the terms of the
agreement.
Accordingly,
it is
for
the first applicant to explain the circumstances under which she
appended her signature on the agreement. The fact that she
did not
read it or that she signed it “thoughtlessly” does not
constitute a valid defence to avoid liability arising
from a
contract.
[4]
[21]
The onus is thus on the applicants to prove that the Trust had not
authorized the first applicant
to act on its behalf in concluding the
written lease. In the applicants’ founding affidavit a bare
denial of the first applicant’s
authority to conclude the lease
on behalf of the Trust is asserted. It was pointed out in
Nieuwoudt
and Another NNO v Vrystaat Mielies (Edms) Bpk
[5]
at para
23 that:
“…
the
fact that trustees have to act jointly does not mean that the
ordinary principles of the law of agency do not apply. The trustees
may expressly or impliedly authorise someone to act on their
behalf and that person may be one of the trustees. There is no
reason
why a third party may not act on the ostensible authority of one of
the trustees, but whether a particular trustee has the
ostensible
authority to act on behalf of the other trustees is a matter of fact
and not one of law.”
See
also
Moraitis
Investments (PTY) LTD and Others v Montic Dairy (PTY) LTD
[6]
quoting with approval
Nieuwoudt
including
Thorpe
and Others v Trittenwein and Another
[7]
where
it is stated that:
“
unless the
trust deed otherwise provides, the trustees must act jointly.
They may however authorise a third party, including
one of their
number, to act on their behalf and conclude agreements that bind the
trust.”
[22]
In casu
, except to argue that there is no general resolution
adopted by the Trust authorising the first applicant to act on behalf
of the
Trust there was not even attempt to file the trust deed which
regulates how the affairs of this Trust are to be conducted
specifically,
with regard to the first applicant’s authority or
lack thereof to conclude lease agreements on behalf of the Trust.
[23]
I am not persuaded that the applicants have made out a case in
support of the averments
that the lease agreement is tainted to
warrant the relief sought by the applicants. I conclude that on the
available facts, it
has been established that the Trust is bound by
the lease agreement.
[24]
For the all these reasons, I make the
following order:
(1)
The application is dismissed with costs
.
_____________
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of Applicants:
Adv.
A Sander
Instructed
by:
Van
Aardt & Van der Walt
BLOEMFONTEIN
Counsel
on behalf of Respondent:
Adv.
JH Els
Instructed
by:
EG
Cooper Majiedt Inc.
BLOEMFONTEIN
[1]
Annexure “FA5” of the applicants’ founding
affidavit.
[2]
Annexures “FA7.1” to FA7.15” of the applicants’
founding affidavit.
[3]
[2009]
ZASCA 1
;
2009
(2) SA 277
(SCA).
[4]
South
African Railways & Harbours v National Bank of South Africa Ltd
1924
AD 704
at pages 715-6.
[5]
2004
(3) SA 486 (SCA)
([2004]
1 All SA 396).
[6]
2017
(5) SA 508
(SCA) paras 23 and 33.
[7]
2007
(2) SA 172 (SCA)
([2006]
ZASCA 30) para 9.