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[2023] ZAFSHC 290
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Kometsi N.O and Others v Kopano Uitkyk Farming Enterprise (Pty) Ltd and Others (223/2023) [2023] ZAFSHC 290 (20 July 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 no:
223/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
MACHABEDI
DINAH KOMETSI N.O.
First
Applicant
[In
her capacity as Trustee of the
KOPANO
UITKYK
NO. 2 TRUST
]
PHATEDI
JOHANNES MOKONE N.O.
Second
Applicant
[In
his capacity as Trustee of the
KOPANO
UITKYK
NO. 2 TRUST
]
PHAKELA
BEN MAPHAKISA N.O.
Third
Applicant
[In
his capacity as Trustee of the
KOPANO
UITKYK
NO. 2 TRUST
]
NAMEDI
FRANS MELATO N.O.
Fourth
Applicant
[In
his capacity as Trustee of the
KOPANO
UITKYK
NO. 2 TRUST
]
TEBELLO
JOHANNES MOTSOANI N.O.
Fifth
Applicant
[In
his capacity as Trustee of the
KOPANO
UITKYK
NO. 2 TRUST
]
THE
MINISTER OF AGRICULTURE, LAND
Sixth
Applicant
AND
RURAL DEVELOPMENT
THE
CHIEF DIRECTOR / ACTING CHIEF
Seventh
Applicant
DIRECTOR
IN THE DEPARTMENT OF
AGRICULTURE
AND RURAL DEVELOPMENT
THE
NATIONAL GOVERNMENT OF THE
Eighth
Applicant
REPUBLIC
OF SOUTH AFRICA
[Through
its Department of Agriculture,
Land
Reform and Rural Development,
previously
known as the Department of
Rural
Development and Land Reform]
MEMBER
OF THE EXECUTIVE COUNCIL (“MEC”)
Ninth
Applicant
[For
the Free State Department of Agriculture
and
Rural Development]
and
KOPANO
UITKYK FARMING ENTERPRISE (PTY) LTD
First
Respondent
[Registration
number:  201[…]
LOUIS
HENDRIK CLAASSEN (SNR) N.O.
Second
Respondent
[In
his capacity as Trustee of the
LOUIS
CLAASSEN
FAMILY TRUST
]
STEFAN
HENDRIK OLIVIER N.O.
Third
Respondent
[In
his capacity as Trustee of the
LOUIS
CLAASSEN
FAMILY TRUST
]
LOUIS
HENDRIK CLAASSEN (JNR) N.O.
Fourth
Respondent
[In
his capacity as Trustee of the
LOUIS
CLAASSEN
FAMILY TRUST
]
DANIEL
KOCK CLAASSEN N.O.
Fifth
Respondent
[In
his capacity as Trustee of the
LOUIS
CLAASSEN
FAMILY TRUST
]
CORAM:
CRONJÉ, AJ
HEARD
ON:
15 JUNE 2023
DELIVERED
ON:
20 JULY 2023
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 15h50 on 20 July 2023.
I
INTRODUCTION
[1]
The Applicants brought a common law
[1]
application for the eviction of the Respondents from eighteen (18)
farms (the “
properties
”
)
of which the National Government of the Republic of South Africa
(“
the
Government
”
),
through the Department of Land, Agriculture and Rural Development
(the
Department
)
is the owner.
[2]
The Kopano Uitkyk Farming Enterprise (Pty) Ltd (“
Kopano
Enterprise
”) and the Second to Fifth Respondents (the “
LCF
Trust
”) oppose the application.
[3]
At commencement of the proceedings, I enquired from the legal
representatives of the parties whether,
given the fact that there are
presently four other cases pending in respect of the properties and
the operations thereon, this
application should be heard and the
orders granted. This is especially so as the Respondents raised four
points
in limine
.
[4]
I specifically asked the Applicants’ counsels whether the
matter does not also raise factual
disputes and whether the matter
should not be referred for oral evidence and that the opportune time
to make the election is at
commencement of the proceedings.
[5]
The counsels for the Applicants were of the view that there is no
impediment and that I can safely
dispose of the matter on the papers.
The Respondents’ counsel argued the contrary.
[6]
It was only after all arguments were advanced that the First to Fifth
Applicants’ counsel
argued that I have a discretion to order
referral. I will deal with the basis on which I may exercise my
discretion at the end
of the judgement.
II
BACKGROUND
[7]
It is common cause that the Government bought the properties from the
LH Claassens Family Trust,
the Louis Claassen Family Trust and
Expectra 322 (Pty) Ltd for a purchase price of R89 000 000.00.
[2]
[8]
The Department, on behalf of the Government, entered into a long-term
lease with the Kopano Uitkyk
No. 2 Trust (“Kopano 2”)
during November 2020.
[3]
[9]
The initial period was for a period of thirty (30) years from
commencement, 27 November 2020.
[10]
The rent payable to the Department is R323 638.23 per year,
escalating at 6% per annum.  Clause
10.1 of the lease agreement
provides that Kopano 2 must retain control of the properties and the
farming activities conducted on
the property, as well as the
controlling interest of any legal entity established for purpose of
any Joint Venture arrangement
between Kopano 2 and any other
party.
[4]
The agreement
also provides that Kopano 2 shall not be entitled, except with the
prior written consent of the Government,
to cede or assign any of the
rights and obligations of Kopano 2 under the lease, sublet the farm
in whole or in part, or give up
possession of the property, or any
part thereof, to any third party.
[5]
Kopano 2 was represented by the First Applicant at the conclusion of
the agreement.
[11]
Subsequent to the conclusion of the sale agreement, the Department’s
National Land Allocation Control
and Recapitalization Committee
(“NLACR”) made recommendations that the properties should
be allocated to two (2) persons.
One of the persons was,
however, already a beneficiary under the Land Reform Program and the
Department instructed Louis Claassen,
who actively conducted the
operations on the farms, to continue to maintain it in terms of
Clause 14 of the purchase agreement.
[12]
During 2014, the Department held discussions with the LCF Trust about
a proposed Joint Venture agreement
between the LCF Trust and
beneficiaries.  It appears that Kopano Enterprise was already
registered and it was intended that
it will conduct trading
activities on the properties provided it was converted into a Joint
Venture wherein the LCF Trust will
hold 40% of the shares and the
beneficiaries 60% through Kopano 2.
[13]
On 5 March 2014, the Department informed Louis Claassen that the
Ministerial Committee granted approval to
the proposed Joint Venture
subject to a 60/40 share arrangement and that the Department was
still awaiting response from the legal
unit in Pretoria.
[6]
On the next day, the LCF Trust sent a letter to the Department
stating that the Trust is satisfied with the 60/40 share allocation

and will proceed to amend the company documentation, Trust Deeds,
related agreements and documents wherein Kopano 2 and the LCF
Trust
will hold 60% and 40% respectively in Kopano Enterprise.
[7]
[14]
In a letter dated 21 May 2014, Mr Alan Groves (who is a Trustee of
the LCF Trust) sent a letter as Managing
Director of Starplex 404
(Pty) Ltd wherein he informed the Department that Kopano 2 was
registered on behalf of the workers and
that the Department will
issue a lease to Kopano 2.  Kopano Enterprises will conduct the
trading activities on the farms and
Kopano 2 will hold 60% and LCF
Trust 40% of the shares.  Two (2) directors would be appointed
by Kopano 2, one by the Department
and one by the LCF Trust.
Profits would be shared according to the shareholding.
[8]
[15]
Eight (8) years later, on 1 February 2022, the Department dispatched
a letter to Kopano Enterprise wherein
it stated that it considered
the relationship between Kopano 2 and Kopano Enterprise and came to
the conclusion that the relationship
is irreparable and that Kopano 2
wish to continue with farming operations independent of Kopano
Enterprise.
[16]
On 25 March 2022, JC Uys Attorneys sent a letter to the Department on
behalf of Kopano Enterprise, the LCF
Trust and one Mr Lethoba.
It is noted that summons was issued by Kopano 2 against their clients
under case number 55/2022
and that Kopano Enterprise denies the
Department’s rights to cancel the agreement between the
Department and the LCF Trust,
which agreement was concluded for the
benefit of Kopano Enterprise.  Reliance is then placed on a
partly written partly oral
agreement, which the Respondents refer to
as a
stipulatio
alteri
(the
“
stipulatio
”
).
The written part of the alleged
stipulatio
consists
of an e-mail dated 5 March 2014, a letter dated 5 March 2014, and two
e-mails on 21 May 2014.
[9]
[17]
It states that the terms of the
stipulatio
were
that the JV would have the right of use and enjoyment of the
property; the JV would have shareholding of 49% by the LCF Trust
and
51% by the beneficiaries chosen by the Department and the percentage
shareholding was thereafter amended to be 60/40 in favour
of the
appointed beneficiaries. The duration of the right granted to the JV
over the immovable properties would subsist for a duration
of the
lease granted to the beneficiaries chosen from time to time, but not
less than five years.
[10]
[18]
It continues to state that the benefit under the
stipulatio
is
an interest in land in the form of a
usufruct
in favour of the
JV and that the JV accepted the benefit of the
stipulatio
by
conducting the farming enterprise.  It gives an exposition of
the business conducted on the properties and states that the

Department registered Kopano 2 during January 2015.  It states
that on 30 August 2017, Kopano 2 passed a unanimous resolution
to
enter as chosen beneficiary into the JV on the terms set out by the
Department and the LCF Trust.  According to it the
JV paid the
salaries of various beneficiaries pending the conclusion of the Lease
Agreement between the Department and Kopano 2.
[19]
It alleges that the
stipulatio
was orally amended on or about
12 November 2020 where the Department was represented by Mr Modise,
and the LCF Trust.  I pause
to state that the Government and the
Department denies that Mr Modise has authority to bind them and this
raises a factual dispute.
It is alleged that: the duration of
stipulatio
was agreed on; it would allegedly subsist for the
duration of the lease, but not less than thirty (30) years; the
rights and responsibilities
of the shareholders in the JV would be
set out in a Shareholders Agreement; the financial exposure of the
LCF Trust towards the
affairs of the JV be safeguarded by means of
managerial rights; and the JV to be able to guarantee dividend
payments to Kopano
2.  This was an “
amended stipulatio
alteri
”.  The JV accepted the benefit of the amended
stipulatio
and has continued to conduct the farming
operations.  All the Trustees of Kopano 2 as well as the
beneficiaries attended the
meeting on 12 November 2020 and that they
have knowledge of the amended
stipulatio
.  Effect was
given in the lease agreement to the amended
stipulatio
in
terms of Clause 10.1.1 read with Clause 2.1.1, Clause 2.1.3 and
Clause 2.1.13(a) – (h), (j) – (i), and (q) of the
Lease
Agreement. After entering into the lease agreement, Kopano 2 failed
to enter into the Shareholder Agreement.  It is
furthermore
stated that the benefit to the JV, being a
usufruct
, is a
personal right that becomes a real right upon registration in terms
of Section 102 of the Deeds Registries Act, 47 of 1937
(“Registries
Act”) and that the JV is entitled, in terms of Section 65 of
the Registries Act to have such right registered.
[20]
During early 2021, an internal disagreement arose between Kopano 2
and that the First Applicant instituted
an application for a
declaratory order under case number 818/2021, which she later
withdrew by agreement between the parties.
It appears that: on
23 March 2021, the Department and Kopano 2 was requested not to
interfere with the JV’s rights on the
farm; on 20 April 2021 a
meeting was held where further negotiations took place and the JV
would continue with all farming activities;
on 31 May 2021, a meeting
was held where it was accepted, discussed and confirmed by all
parties that the commercial farming enterprise,
comprising of the
Department’s farms and LCF Trust farm and cattle, is in
peaceful and undisturbed possession of the JV;
that on 24 August
2021, the Department confirmed its acceptance of the commercial
farming enterprise, but that on 1 and 2 September
2021, Kometsi and
Mokone proceeded to dispossess the JV of possession of the farm.
[21]
Thereafter an application was brought under case number 4076/2021 by
the LCF Trust, the JV and Lethoba to
restore possession and to cease
interference in the rights exercised by the JV and Lethoba.  The
order was granted.
[22]
On 11 January 2022, Kometsi and Mokone issued summons under case
number 55/2022.
[23]
On 30 March 2022, the Department dispatched a notice to vacate the
farms to JC Uys Attorneys wherein it is
inter
alia
stated
that the Department has policies and procedures in place that require
certain authorizations before contracts can be concluded
and rights
in land be granted, and that no authorizations to conclude contracts
and/or grant rights in land were obtained by Kopano
Enterprise, the
LCF Trust or Mr Lethoba.
[11]
[24]
The author of the letter was Mr Modise (Acting Chief Director:
Free State Provincial Shared Services
Centre).  On 24 May 2022,
the LCF Trust was instructed to leave the farm at the end of the
current harvesting season.
It should be noted that this letter
was marked “
without prejudice
”, but attached by
the Applicants.  A similar letter was sent to Kopano Enterprise
on 22 August 2022, also “
without prejudice
” but
attached to the Applicants’ papers and signed by Mr Modise.
III
THE RESPONDENTS’ VERSION:
[25]
The Respondents were out of time with their answering affidavit an
ask for condonation. They state that Kopano
Enterprise brought an
urgent application under case number 3805/2022 to interdict the Sixth
to Ninth Applicants from interfering
with Kopano Enterprises’
possession over the properties.  Kopano 2 then applied to be
joined. Whilst the parties were
awaiting judgment, this application
was launched and as judgment in that case would have had an influence
on the present application,
if in favour of Kopano Enterprise, it
would render this application redundant. On 9 March 2023, the First
to Fifth Applicants in
this application were joined to case number
3805/2022, the application was removed from the roll, and Kopano
Enterprise was ordered
to pay the costs.
[26]
The answering affidavit was deposed to on 16 March 2023 whereas it
had to be served no later than 21 February
2023.  It appears to
have been served on all the Applicants on 17 March 2023.  The
application is therefore, on the Respondents’
calculation,
twenty two (22) Court days late.  They state that the
application is voluminous.  In respect of prospects
for success,
they refer to the various points
in
limine
they
raise in this application and that the Supreme Court of Appeal
recognize an oral
stipulatio
alteri
,
as raised under case number 1993/2022 as a valid cause of action.
[12]
[27]
Case number 3805/2022 would be heard in the ordinary course and would
be set down simultaneously with filing
of the answering affidavit.
They submit that the Applicants suffer no prejudice which cannot be
remedied by a costs order.
[28]
I am satisfied that a proper case has been made for condonation.
[13]
The explanation was reasonable and little time was spent on the issue
in argument. Not much space and time was spent in the pleadings
on
the issue. For that reason, each party is to pay its own costs.
[29]
The Respondents raise four (4) points
in
limine
.
The first is that of
lis
pendens
.
There are presently matters before the Free State High Court dealing
with the property and use thereof.  The first
is a spoliation
application under case number 4076/2021. The second an action by the
First to Fifth Applicants against the Respondents
and the Sixth to
Ninth Applicants under case number 55/2022. The third is an action
issued under case 1993/2022 where the Respondents
are the Applicants.
The Fourth is an urgent application brought by Kopano Enterprise
against the Sixth to Ninth Applicants under
case number 3805/2022.
The fifth is the present application.
[14]
[30]
There are therefore, on their version, at least four active matters
being proceeded with by the parties to
this present application.
The same facts as are required to be considered in this application
are under consideration in
case numbers 55/2022 and 1993/2022 as both
relate to the central issue of determination of rights of possession
over the property.
It is submitted that the present application
should be stayed pending the determination of the actions where oral
evidence will
be led and the issues properly ventilated.
Furthermore is an application for an interim interdict to prevent
interference
with possession and to prevent any eviction pending
finalization of the actions, is still pending.
[31]
The Respondents submit that the disputes between the parties are
currently being litigated in the same Court,
on substantially the
same issues, and between substantially the same parties.  It is
submitted that given the disputes of
fact raised together with the
advanced stage of litigation in the other applications/actions, where
the pleadings are already closed,
it would not be expedient, just and
equitable that I determine the eviction.
[32]
The second point
in limine
relates to disputes of fact.
They submit that the disputes between the parties are numerous and
that the essential dispute
of fact is whether there is a
stipulatio
alteri
or amended
stipulatio alteri
, whether Kopano 2 had
knowledge thereof and what the rights of Kopano Enterprise are.
It is submitted that the disputes of
fact are not contrived and would
form the basis of the facts that would be needed to be decided
considering the judgments in both
the action proceedings under case
numbers 55/2022 and 1993/2022.  They submit that this Court
would not be able to come to
the correct conclusion when only the
papers filed are considered. They submit that considering the
multiple actions, this application
should not have been brought and
it should be dismissed with costs on a punitive scale.
[33]
The third point
in limine
relates to the
locus standi
and
authority.  They argue that the First to Fifth Applicants lack
locus standi
as this is a vindicatory application.  There
is no lessor/lessee relationship between the Kopano 2 and Kopano
Enterprise.
[34]
Kometsi and Mokone, as referred to above, issued summons against the
other parties, excluding the Third Applicant
in the present
proceedings under case number 55/2022.
[15]
[35]
I pause to state that Kopano 2 averred in paragraph 70 of the
particulars of claim that despite repeated
demands –
telephonically, verbally – and in written communications of the
Claassens to vacate the farms, the Claassens
have failed and/or
neglected and/or refused to hand over the farms and the equipment.
[36]
In the fourth point
in
limine
the
Respondents aver that the Second to Fifth Respondents have been
mis-joined to the proceedings.  They referred to an order

granted by Acting Justice O’Brien on 3 March 2021 in terms of
which the First Applicant under case number 818/2021 and by
agreement
between the parties, withdrew the application and the parties agreed
that the meeting between all stakeholders (i.e.
Trustees,
beneficiaries and representatives of the relevant State Departments)
will be scheduled to take place on 16 March 2021
at 10h00, be held at
the premises of the attorneys for the Respondents.
[16]
[37]
On 9 September 2021, Acting Justice Wright under case number
4076/2021, granted an order in terms of which
the First and Second
Applicants in the present application and Miengana Agriculture (Pty)
Ltd were ordered to immediately restore
to Kopano Enterprise and Mr
Lethoba possession of fifteen (15) immovable properties, which
properties also form the basis of the
present application.  The
First and Second Applicants, then acting for Kopano 2 and Miengana
Agriculture were ordered to pay
the costs of the application jointly
and severally.
[17]
[38]
The Respondents furthermore refer to a letter dated 30 August 2017,
directed to one Mr Sekawana, presumably
the Chief Director of the
Department, wherein the Trustees of Kopano 2 asks for permission to
enter into a Joint Venture with the
LCF Trust in terms of which the
Kopano 2 will have 60% and LCF Trust 40% of the shares after the
financial year.
[39]
The Joint Venture would be for five (5) consecutive years commencing
on 1 October 2017 until 1 October 2022.
It appears to be signed
by Mr Lethoba, and the First and Second Applicants in this present
application.
[40]
They submit that the terms of the lease agreement are subject to the
stipulatio
and
the joint venture agreement.
[18]
[41]
They further state that the appointment of the Third, Fourth and
Fifth Applicants as Trustees of the Kopano
2 is presently disputed by
Mr Lethoba, the founding Trustee of the Trust under case number
1993/2022.
[19]
IV
THE FIRST TO FIFTH APPLICANTS’ REPLY
[42]
The agreement between Mr Groves, Ms Ntono and Mr Modise is denied.
This, to me, raise a factual dispute.
According to them the 5 years
period granted to the JV has expired. The Respondents are challenged
to provide audited financial
statements. It is denied that the
Department accepted the
stipulatio
and
denied that the request to enter into a JV was a unanimous
resolution. There is a denial of a meeting held with the Department

and the question is raised why the terms of the agreement was amended
from five years to thirty years.
[20]
They question the oral agreement and the terms of it. The role and
authority of Mr Lethoba is questioned. They deny the meeting
held on
12 November 2020
[21]
whereas
the Government admits the meeting.
[22]
Save to aver prejudice, these Respondents do not, materially, take
issue with the merits of the condonation application.
[23]
They submit that this application will dispose of all the other
litigious matters.
[24]
V
THE GOVERNMENT’S REPLY
[43]
It tenuously opposes condonation. Although, in attacking the point of
lis
pendens,
they
are correct in stating that they did not institute any actions, the
subject matter is still the properties, the use and enjoyment
and
whether a
stipulatio
came
into existence and was amended. I cannot find that this application
is totally divorced from the balance of the pending litigation.
They
state that the LCF Trust has a substantial interest in the litigation
as they are parties to the conclusion of the JV agreement
and is a
party to one of the litigious matters.
[25]
VI
AUTHORITIES AND ARGUMENTS
[44]
The Applicants, having knowledge of existing litigation about the
subject matter, moved this application
on motion. Bringing evictions
proceedings on motion is perfectly in order unless factual disputes
arise or can be anticipated.
Should a party elect to proceed on
motion, there are attendant risk to be considered.
[45]
In
Tamarillo
(
Pty
)
Ltd
v BN Aitken
(
Pty
)
Ltd
[26]
it
was held:
"A
litigant is entitled to seek relief by way of notice of motion. If he
has reason to believe that facts essential to the
success of his
claim will probably be disputed he chooses that procedural form at
his peril, for the Court in the exercise of its
discretion might
decide neither to refer the matter for trial nor to direct that oral
evidence on the disputed facts be placed
before it, but to dismiss
the application."
[46]
In
National
Director of Public Prosecutions v Zuma (Mbeki and another
intervening)
[27]
it was held:
“
[26]
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 fact arise on the
affidavits, a final order can be granted only if the facts averred in
the applicant’s (Mr Zuma’s)
affidavits, which have been
admitted by the respondent (the NDPP), together with the facts
alleged by the latter, justify such
order. It may be different if the
respondent’s version consists of bald 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.  The court below did not
have regard to these propositions and instead decided the case on
probabilities without rejecting
the NDPP’s version.”
[47]
This principle was affirmed in
Law
Society, Northern Provinces v Mogami
[28]
:
“
An
application for the hearing of oral evidence must, as a rule, be made
in limine and not once it becomes clear that the applicant
is failing
to convince the court on the papers or on appeal. The circumstances
must be exceptional before a court will permit an
applicant to apply
in the alternative for the matter to be referred to evidence should
the main argument fail (De Reszke v Maras
and Others
2006 (1) SA 401
(C) ([2005]
4 All SA 440)
at paras 32- 33). [14] No special
circumstances that justified a deviation from the general rule of
practice were shown to exist.
The factual disputes are wide-ranging
and not within a narrow compass. A referral to oral evidence on
specified issues, therefore,
would not have been a suitable method of
employing viva voce evidence for the determination of the disputed
issues of fact. The
exchange of pleadings and a trial are required to
define and resolve the disputes between the parties.”
[48]
Adv Ramaili SC (Adv Vilakazi appearing with him), appeared for Kopano
2. They argued that the LCF Trust and
the other sellers of the
properties had to vacate the properties on 31 August 2013.
[29]
They refer to
Port
Elizabeth Municipality v Various Occupiers
[30]
for a submission that this is a quasi-PIE application and that the
factors in that Act cannot be used to justify occupation. I
agree
with them. The challenge that I have with their arguments in the
heads is, however that they refer to the Claassens’

(effectively the Second to Fifth Respondents) who are on my reading
of the papers not claiming possession
[31]
,
as was also evident in the order of Wright AJ.
[32]
[49]
In respect of the
stipulatio
alteri
,
they refer to
Adhu
Investments CC and Others v Padayachee
.
[33]
In that case, however, the transaction was regulated by a loan
agreement and reliance was placed on a tacit
stipulatio
.
The agreement contained a non-variation clause. I
t
was only after the issue of summons, that Padayachee amended his
particulars of claim to allege that the loan agreement contained

a
stipulatio
alteri
.
The facts therein differ from those before me. Clause 10.1 of the
lease agreement provides that Kopano 2 must retain control of
the
properties and the farming activities, as well as the controlling
interest in any legal entity established for purposes of
any joint
venture.
[34]
The JV was,
according to the Respondents, established to give effect to the
clause and on the papers Kopano 2 would have the controlling
(60%)
interest. On the Respondents’ version the
stipulatio
was
in favour of the JV.
[35]
Without oral evidence and purely considering the papers, I am unable
to make a conclusive finding that there was no
stipulatio
or
amendment thereof. To the extent that it is necessary to make a
finding in respect of a
usufruct
,
the same applies. The reference to
AJP
Properties CC v Sello
[36]
is not on point
.
Loggenberg and Others v Maree
[37]
is also authority that s
uch
a contract has been recognised as enforceable in relation to a
company not yet formed.
[38]
The balance of the cases referred to are not on point.
[50]
Adv Seneke (Adv Boonzaaier appearing with him) for the Government,
argues that clause 14 of the sale agreement
allowed Louis Claassen to
continue to farm as to keep the appropriate levels of production. The
intention was to create the JV
but the relationship between Kopano 2
and the LCF Trust broke down which led to Kopano 2 to refuse to enter
into a joint venture.
The Department subsequently gave notice to the
LCF Trust to vacate the property and the LCF Trust thereafter, on 16
May 2022, served
a summons moving for an order that it be declared
that a
stipulatio
came into existence.
[51]
In support of their argument, reference is made to
MV
Andre Builder Joiner CC v Nordien
.
[39]
The principles applicable to eviction where the Applicant had
established all the grounds cannot be faulted. In that case the
occupier claimed an enrichment lien. The court found that a
clause
in that agreement provides any improvements, alterations or additions
which the tenant may have affected to the leased premises
shall
become the property of the landlord, and the landlord shall not be
obliged to compensate the tenant in respect thereof. T
he
question, however, remains whether the occupier has established a
defence. The case is not on point. The same applies to the
case of
Rekdurum
(Pty) Ltd v Weider Gym Athlone (Pty) Ltd t/a Weider Health &
Fitness Centre
.
[40]
[52]
Reference is made to
Wrightman
t/a JW Construction v Headfour (Pty) Ltd and another
[41]
for  the submission that the Respondents’ defence does not
disclose a genuine and
bone
fide
dispute
of fact as there were only discussion about the joint venture which
never materialised.
[53]
In respect of
lis
pendens
they
refer to
Loader
v Dursot Bros (Pty) Ltd.
[42]
In
Ferreira
v Minister of Safety and Security and Another
[43]
the Court referred to the case and stated that the discretion to stay
the proceedings or to hear the matter is determined with
reference to
what is just and equitable as well as the balance of convenience. In
view of the fact that the later proceedings are
presumed to be
vexatious, the party who instituted those proceedings bears the onus
of establishing that they are not vexatious.
He or she does so by
satisfying the court that despite all of the elements of
lis
alibi
pendens
being
present, justice and equity and the balance of convenience are in
favour of the subsequent proceedings being adjudicated upon.
[54]
Reliance on
Phillip
Dintsi and others v Dewald van Breda and others
[44]
is
not on point.
Eksteen
v Road Accident Fund
[45]
is
authority for the exercise of a discretion to stay proceedings.
Bearing in mind that the Respondents’ stance that pending

litigation was known before launching this application, I am of the
view that the
bona
fides
of
the Applicants are not so clear.
[55]
They submit that the point of misjoinder should fail as the LCF Trust
has a direct and substantial interest
in the proceedings.
[56]
Adv Meijers (with Adv Lebona) appeared for the Respondents. They
submit that the central issue is substantially
the same right of
possession between substantially the same parties, which is subject
to a pending action under case number 1993/2022.
The same argument is
made in respect of case number 55/2022. The Respondents’
application to interdict eviction is also pending
under case number
3805/2022. They submit that the matter before me should be stayed
pending final determination of case numbers
1993/20022, 55/2022 and
3805/2022. They refer to
Caesarstone
Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others
.
[46]
[57]
They too rely on
Loggenberg
and Others v Maree
[47]
on which Kopano 2 relies, albeit for different reasons.
[58]
They submit that Mr Lethoba was not joined in the present application
although he is a party to case number
1993/2022 and that his rights
have to be considered with those of Kopano Enterprise. Reliance is
placed on
Beadica
231 CC and Others v Trustees for the time being of the Oregon Trust
and Others
[48]
for the supposition that
pacta
sunt servanda
gives
effect to the central constitutional values of freedom and dignity.
It has further recognised that general public
policy
requires that contracting parties honour obligations that have been
freely and voluntarily undertaken.
Pacta
sunt servanda
is
thus not a relic of our pre-constitutional common law.  It
continues to play a crucial role in the judicial control of contracts

through the instrument of public policy as it gives expression to
central constitutional values.
[49]
[59]
They submit that the facts were known and raise real and
bona
fide
disputes
of fact.
[50]
[60]
In respect of the misjoinder of the Second to Fifth Respondents, they
submit that the LCF Trust is not in
possession but merely a
shareholder of Kopano Enterprises. It is not a matter of piercing the
corporate veil. I am of the view
that the merits of all the pending
cases have implications for the determination of the various
agreements between the parties.
The Second to Fifth Respondents may
eventually have good argument in respect of costs but in view of the
conclusion that I arrive
at, it is not the time to determine that.
[61]
They submit that the approach in
Metallurgical
& Commercial Consultants (Pty) Limited v Metal Sales Co (Pty)
Limited
[51]
should not be followed as is would set the parties back a number of
steps.
VII
CONCLUSION
[62]
In my view, the Applicants were well aware of the challenges they
will face in launching the application.
I do not find it necessary to
list all of them and only refer to the more salient ones. There are
numerous correspondence by way
of emails and letters which,
prima
facie
, support the version of the Respondents. The arguments of
the Respondents were well-known to the Applicants.
[63]
The denial of the authority of Mr Modise, specifically, is not
clearcut. He acted in many roles for the Government.
There are
disputes between the Applicants about the meeting of November 2020.
I, however, make no finding in respect hereof. The
status and
locus
standi
of the trustees, and who may be trustees and who not, is
also not clear.
[64]
Motion proceedings can generally not answer questions pertaining to
credibility. Probabilities are not determined
on motion.
[52]
In
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
[53]
it
was stated that (except in interlocutory matters) it is undesirable
to attempt to settle disputes of fact solely on probabilities

disclosed in contradictory affidavits as opposed to
viva
voce
evidence.
[54]
[65]
There are litigious matters still pending and this does raise the
issue of
lis pendens
, if not in respect of all the parties,
then at least about the subject matter. This point in
limine
therefore succeeds.
[66]
I referred to the various factual issues that I am unable to
determine on affidavit. The point in
limine
in respect of
factual disputes therefore carries merit.
[67]
I am of the view that Kopano 2 has
locus standi
as it has a
lease agreement which grants it rights over the land. The existence
of the JV raises questions about Kopano 2’s
sole authority to
use the properties. The Government has
locus standi
to
initiate or support applications for eviction where it is the owner.
The matter is not purely vindicatory.
[68]
In respect of misjoinder of the Second to Fifth Respondents, I find
that as they are shareholders in the
JV, which the Applicants now
question, they are necessary parties. This does not imply that the
relief affect them personally as
I, only for purposes of this
judgment, accept that the JV appears to be the vehicle utilised for
conducting the farming operations.
[69]
Should I, in view of the case law quoted above, and the belated
request to exercise my discretion to refer
the matter to oral
evidence or trial, do so? The law is clear that I can only do so if
there are exceptional circumstances.
[70]
I find no exceptional circumstances. As stated, there are presently
other litigious matter pending. They
have a material bearing on
whether there was a JV, whether a
stipulatio
and
usufruct
came into being, and whether the JV is in unlawful occupation. The JV
brought an application to stop eviction and this is, as part
of the
other cases, still pending.
[71]
I exercise my discretion in postponing the application pending the
final determination of the other litigious
matters between the
parties. It would be fair, just and equitable that the application be
entertained only when the rights have
crystallised after the merits
were properly evaluated. The same argument holds true for costs.
[72]
Therefore, I grant the following order.
ORDER
1.
Condonation is granted for the late filing of the answering affidavit
of the Respondents.
2.
Each party shall pay its own costs in respect of the condonation
application.
3.
The application is postponed pending the finalisation of case numbers
55/2022, 1993/2022,
3805/2022, and any such actions and/or
applications that may have been instituted in respect of the
properties and rights therein.
4.
The costs of the main application stand over for later adjudication.
P R
CRONJÉ, AJ
For
the First to Fifth Applicants:
Adv
M. Ramaili SC
Adv
J. Vilakazi
Jam
Jam Attorneys Inc.
Rampai
Attorneys
For
the First to Sixth to Nineth Applicants:
Adv
T. Seneke
Adv
A.S. Boonzaaier
State
Attorney
For
the Respondents:
Adv
G.V. Meijers
Adv
N. Lebona
JC
Uys Attorneys
McIntyre
van der Post Attorneys
[1]
The
other two species of evictions takes place under the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land
Act,
19 of 1998 (
PIE
)
and the
Extension
of Security of Tenure Act, 62 of 1997
(Esta)
[2]
Pleadings,
p. 23, para 24; page 153 - 165
[3]
Ibid,
p. 90 - 106
[4]
Ibid,
p. 96, Clause 10.1
[5]
Ibid,
p. 97, page 11
[6]
Ibid,
p. 187
[7]
Ibid,
p. 188
[8]
Ibid,
p. 189
[9]
Ibid,
p. 194, para 5.4 – 5.5
[10]
Ibid,
p. 195, Clause 5.6
[11]
Ibid,
p. 208 - 210
[12]
Ibid,
p. 280, para 88
[13]
See:
Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A); Grootboom v
National Prosecuting Authority and Another (CCT 08/13)
[2013] ZACC
37; 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1
(CC); (2014) 35 ILJ 121 (CC) (21 October 2013)
[14]
Pleadings,
p. 283, para 123.1 – 123.5
[15]
Ibid,
p. 395
[16]
Ibid,
p. 385
[17]
Ibid,
p. 396 - 397
[18]
Ibid,
p. 304, para 163
[19]
Ibid,
p. 323, para 238
[20]
Ibid,
p. 588, para 32 - 33
[21]
Ibid,
p. 588, para 32
[22]
Ibid,
p. 619, para 26 - 27
[23]
Ibid,
p. 594, para 73 - 77
[24]
Ibid,
p. 595, para 80
[25]
Ibid,
p. 628, para 60
[26]
1982 (1) SA 398 (A);
See also
Gounder
v Top Spec Investments (Pty) Ltd
[2008] ZASCA 52
;
[2008]
3 All SA 376
(SCA) para [10]
[27]
[2009]
2 All SA 243 (SCA)
[28]
2010
(1) SA 186
(SCA) at 195C-D
[29]
Pleadings,
p. 163, clause 14.1
[30]
(CCT
53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC)
(1 October 2004) – which application was in terms
of the
PIE
Act
[31]
Esta
is therefore not applicable even though it is farm land
[32]
Referred
to above
[33]
(1410/2016)
[2019] ZASCA 63
(24 May 2019)
[34]
Pleadings,
p. 141, clause 10.1
[35]
Ibid,
p. 252, para 14 - 16
[36]
(39302/10)
[2017] ZAGPJHC 255;
2018 (1) SA 535
(GJ) (8 September 2017)
[37]
(286/17)
[2018] ZASCA 24 (23 March 2018)
[38]
At
para [22]
[39]
(19002/20)
[2021] ZAWCHC 255
(6 December 2021)
[40]
1997
(1) 646 SA
[41]
(66/2007)
[2008] ZASCA 6; [2008] 2 All SA 512 (SCA); 2008 (3) SA 371 (SCA) (10
March 2008)
[42]
1948
(3) SA 136
(T)
[43]
(1696/2011)
[2015] ZANCHC 14 (4 September 2015) at para 8 - 9
[44]
(LCC
15/2019)
[45]
(873/2019)
[2021] ZASCA 48; [2021] 3 All SA 46 (SCA); 2021 (8) BCLR 844 (SCA)
(21 April 2021)
[46]
(741/12)
[2013] ZASCA 129; 2013 (6) SA 499 (SCA); [2013] 4 All SA 509 (SCA)
(26 September 2013); See also:
Socratous
v Grindstone Investments 134 (Pty) Ltd
(149/10)
[2011] ZASCA 8; 2011 (6) SA 325 (SCA) (10 March 2011) at para [16]
[47]
(286/17)
[2018] ZASCA 24 (23 March 2018)
[48]
(CCT109/19)
[2020] ZACC 13
;
2020 (5) SA 247
(CC);
2020 (9) BCLR 1098
(CC) (17
June 2020)
[49]
At
para [83]
[50]
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
(53/84)
[1984] ZASCA 51; [1984] 2 All SA 366 (A); 1984 (3) SA 623; 1984 (3)
SA 620 (21 May 1984)
[51]
1971
(2) SA 388 (W)
[52]
There
may be exceptions but they are not evident in this application
[53]
1949
(3) SA 1155 (T)
[54]
See
also:
T.C.M
v L.R.M.M
(HCAA09/2021)
[2022] ZALMPPHC 3 (19 January 2022); See also
Kalil
v Decotex (Pty) Ltd. and Another
(158/87)
[1987] ZASCA 156; [1988] 2 All SA 159 (A) (3 December 1987)