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[2023] ZAFSHC 401
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Kometsi N.O. and Others v Kopano Uitkyk Farming Enterprise (Pty) Ltd (223/2023) [2023] ZAFSHC 401 (19 October 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
Case
no:
223/2023
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,
Sixth
Applicant
LAND
AND RURAL DEVELOPMENT
THE
CHIEF DIRECTOR: ACTING
Seventh
Applicant
CHIEF
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: 2013[…]]
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].
DANIëL
KOCK CLAASSEN N.O.
Fifth
Respondent
[In
his capacity as Trustee of the LOUIS
CLAASSEN
FAMILY TRUST]
CORAM:
P R CRONJÉ, AJ
HEARD
ON:
08 SEPTEMBER 2023
DELIVERED
ON:
19 OCTOBER 2023
JUDGMENT
BY:
P R CRONJÉ,
AJ
[1]
On 20 July 2023, I granted the following orders:
“
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 finalization of case numbers
55/2022, 1993/2022,
3805/2022 and any such actions and/or application
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.”
[1]
[2]
Dissatisfied with my order, the Applicants filed applications for
leave to appeal to the Supreme
Court of Appeal in respect of the
whole of my judgment. I do not deal with each and every aspect
of the main application
that was comprehensively argued before me,
nor each aspect contained in the applications for leave. I did
however consider all.
GROUNDS
OF APPEAL: FIRST TO FIFTH APPLICANTS:
[3]
Under the first ground they submit that I erred in “presumably”
finding, that a Joint
Venture (JV) is for all intents and purposes a
stipulatio alteri
and that I was mistaken in relying on such
as an indication of a dispute of fact. No mention of a
stipulatio
was ever stated in any correspondence and the
Respondents relied on “
meetings
” between the LCF
Trust and Seventh Applicant. The Sale Agreement specifically
prohibited a
stipulatio
whether in writing or verbally unless
it was reduced to writing and signed by all parties. I erred in
equating discussions
with an agreement. No JV came into
existence and the beneficiaries never accepted the
stipulatio
.
The Lease Agreement did not allow for any variation of the Agreement
unless reduced to writing and signed by both parties.
A 40%
shareholder cannot conclude an Agreement on behalf of a Company.
The Lease Agreement allowed the First to Fifth Applicants
to form a
Joint Venture of their choice and a Court cannot keep a person or
entity to an agreement if they no longer wish to be
governed by it.
[4]
The second ground is that the issue of a
stipulatio
is not a
dispute of fact but a dispute of law and thus capable of resolution
on papers. Denials of a
stipulatio
does not make it a
dispute of fact. Where one party denies and the other party
alleges a
stipulatio
, the Court is none the wiser and would
need to resolve the issue as a question of law.
[5]
The third ground is that I erred in upholding the defence of
lis
pendens
in not looking at the substance of the other litigation
compared with the present matter. Case number 55/2022 dealt with
specific
performance by the Department, a claim for damages and just
and equitable relief in terms of Section 172 of the Constitution.
[6]
Case number 1993/2022 dealt with a declaration of usufruct rights,
conditional upon that declaration,
Kopano 2 to pay for the
implementation of a resolution and Mr Lethoba praying for a
declaration of a legal duty resting on the
Department. Lethoba
also prays for the removal, reinstatement and addition of trustees
for Kopano 2. Only case numbers
55/2022 and 1993/2022 are in
existence and will be consolidated and heard as one when they are
ready for hearing.
[7]
Case number 818/2021 is not pending, case number 4076/2021 was
already granted and not pending
and case number 3805/2022 was removed
from the roll due to lack of urgency and is therefore not pending.
[8]
The fourth ground is that a commercial eviction cannot be resisted
and a Court has no equitable
discretion to refuse or grant an
ejectment order when the grounds are established. This Court
therefore erred in not granting
the eviction.
[9]
Mr Vilakazi (on behalf of the First to Fifth Applicants) submits that
there was never an oral
or written
stipulatio alteri
mentioned
until March 2022. I disagree. I dealt with the history of the
stipulatio
in paragraph [19] of my Judgment. To some
extent, the meeting held on 12 November 2020 is indicative of
discussions post 21
May 2014, upon which the First to Fifth
Applicants rely. In paragraph [42] of my Judgment, I refer to
the fact that the Department
admits the meeting that was held whereas
the First to Fifth Applicants, notwithstanding that at least some of
the names of the
Trustees appear on the attendance register, deny
that a meeting was held.
[10]
In paragraph [19] of my Judgment I referred to the meeting of 12
November 2020 and that the lease would either
subsist for the
duration of the lease but not less than thirty (30) years. The
issue of the five (5) years therefore, in
my view, became
inoperative. The Applicants submit that if it can be found that
the
stipulatio
was amended, it could only be entered into by
the First Respondent and not by the minority shareholder. The
challenge for
the Applicants in this respect is however that they
also dispute the First Respondent as being the JV. If it was not for
case numbers
55/2022 and 1993/2022 wherein the central issue for
determination is the rights and possession in and of the property.
[11]
Having considered all the disputes between the parties as well as the
pending litigation, it was impossible
for me to arrive at a
conclusion in favour of the Applicants on either disputes of fact or
disputes of law. It is important
to note that the
stipulatio
alteri
and/or
usufruct
is not purely a question of law.
It has to find its origin in the facts and as the papers stood before
me I could not make
final determinations of whether a
stipulatio/usufructs
came or did not come into existence, the
authority of the respective actors in the matter, the dispute on who
were present at the
meeting of 15 November 2020 and the binding
effect of what was discussed, or what the chances of success in the
other case numbers
are.
[12]
Adv Vilakazi further submits that I erred in respect of
lis
alibi
pendens
having
regard to
Association
of Mineworkers and Construction Union and others v Ngululu Bulk
Carriers (Pty) Limited (In Liquidation) and others
[2]
,
where the Constitutional Court affirmed that the defence can only
exist where the same dispute, between the same parties, is sought
to
be placed before the same Tribunal and that in absence of any of
those, there is no potential for a duplication of actions.
My reading
of the judgment does not show the strictness of the test that the
Applicants advance. In that matter only the requirement
that the
litigation had to be between the same parties in the two sequential
proceedings was met. The others dealt with the objection
to the
council’s jurisdiction and had nothing to do with the
unfairness of the second dismissal.
[3]
[13]
Case number 55/2022 was issued by the First and Second Applicants and
relates to specific performance by
the Department, damages against
the Department and the LCF Trust, and declaring the conduct of the
LCF Trust to be invalid.
In my view, the parties to that
litigation are essentially bound up by the fact that it relates to
the Lease Agreement, which in
Clause 10 makes provision for the
involvement of third parties. It relates to the same property
that is presently the income-generating
business and involves the LCF
Trust.
[14]
Adv Vilakazi submits that case 1993/2022 was issued by the
Respondents, served on all the Applicants, including
one Mr Lethoba,
who seek a declaration of
usufruct
rights with reference to
the amended
stipulatio alteri
and a conditional claim for
implementation of a resolution signed by Kopano 2.
[15]
There are also claims by Mr Lethoba against the Department and for
the removal/reinstatement of additional
trustees in Kopano 2.
He submits that but for the “
generalized same parties
”
in both cases, they are not the actual same parties, the relief is
also far from being an eviction.
[16]
In my view, however, it loses sight of the Judgment of Wright AJ.
In my view the fact that those matters
are distinguished from the
present one where eviction is sought, does not assist the
Applicants. It is the root of the disputes
between the parties
that determines the substantive rights claimed. In my view, the
central issue remains whether it is a
dispute between the parties,
even more so when the matters in 55/2022 and 1993/2022 are
consolidated, and the basis for claiming
the right of use of the
property. I cannot agree that the defence of
lis alibi
pendens
is not satisfied. Adv Vilakazi argues that case
number 818/2021, 4076/2021 are not pending. It did not make
such a finding
in my Judgment.
[17]
In respect of case number 3805/2022, he submits that the matter is no
longer pending as LCF Trust has not
set it down for hearing. This
is not critical in determining of whether there is litigation
pending. The fact that
the matter was struck from the roll due
to a lack of urgency does not make it moot. The result is only
that the matter is
then dealt with in the ordinary course of process
as provided for in the Uniform Rules.
[18]
He submits that the Applicants are enforcing their rights in terms of
both the purchase agreement and the
sale agreement. It is important
to note the provisions of Clause 10.1 of the Lease Agreement.
It reads:
“
The
Lessee must retain control of the farm and the farming activities
conducted on the property, as well as the
controlling
interest of any legal entity established for purposes of any joint
venture
and arrangement between the lessee and any other
party.
” [my emphasis]
[19]
In terms of the correspondence before me, it was stated that Kopano 2
has a 60% shareholding and this would
satisfy the requirement.
[20]
Clause 11 provides:
“
11.
Assignment and subletting –
The
lessee shall not be entitled, except with the prior written consent
of the lessor, to –
11.1
cede or assign any or any of the rights and obligations of the lessee
under this lease;
11.2
sublet the farm in whole or in part;
11.3
give up possession of the farm, or any part thereof, to any third
party.
”
[4]
[21]
The two clauses have to be read together. It was apparent to me that
there was no prohibition against the
conclusion of an agreement
wherein Kopano 2 would have the majority vote and the First
Respondent being the vehicle for conducting
the business. It is
also apparent that the Department continues to play an active role
subsequent to the conclusion of the
Lease Agreement. Mr
Vilakazi submits that there is no real dispute of fact and even an
oral hearing would not resolve the
dispute. I was therefore
called upon to dispose of the question of law. In eviction
applications, so the argument went,
a Court has to accept those facts
averred by the Applicants that were not disputed by the Respondents
and the Respondents’
version as far as it was plausible,
tenable and credible.
[22]
It is correct that Kopano 2 has a Lease Agreement and that it gives
it full control over the property, subject
to the balance of the
provisions in the agreement, but it is incorrect to state that there
is no compelling reason for the Company
to continue to be in
occupation of the farms, involving the LCF Trust.
[23]
There has already been an order by Wright AJ in respect of
spoliation. Furthermore the LCF Trust were
not the sellers of
all of the properties. The Applicants err in their reliance on
the purchase agreement that provides for
a non-variation clause and
loses sight of the Lease Agreement that was concluded subsequently.
GROUNDS
OF APPEAL: SIXTH TO NINETH APPLICANTS:
[24]
Adv Seneke (Adv Boonzaaier appearing with him) for the Government,
submits that the points
in
limine
have
no merit and submits that this Court ought to have assessed the
evidence before it, and if it did so, it would have noted the
allegations of the Respondents that do not raise a genuine and
bona
fide
dispute
of fact. The documentary evidence demonstrate discussions of a
proposed JV and no amount of oral evidence could change
the nature of
the discussions to a
stipulatio
alteri
.
[5]
At best, the Department and the LCF Trust discussed a possible JV
agreement, which the beneficiaries later declined to sign.
In
similar vein to the argument by Adv Vilakazi, they submit that this
Court erred in relying on
Loggenberg
and Others v Maree
[6]
as authority for the proposition that a
stipulatio
alteri
has
been recognized as enforceable in relation to a company not yet
formed. I disagree and refer to para [22] of that judgment.
[25]
It is argued that the JV never materialized, and the agreement
remains unsigned. Reference is made
to
Buffalo
Freight Systems (Pty) Ltd v Castleigh Trading (Pty) Ltd and
Another
[7]
,
where it was held that a Court has to undertake an objective analysis
of disputes and that the version propounded by the Respondents
was
fanciful and untenable. This Court, so the argument went,
failed to objectively assess the facts and that a Court of
Appeal
would find that it misdirected itself in failing to assess the
facts. They are therefore reasonable prospects that
a Court of
Appeal would find that the finding that the First Respondent is a JV
is a material misdirection, that the
stipulatio
is
too farfetched and untenable, and that the order of eviction should
have been granted.
[26]
I could not make factual findings as there are so many and unable to
be resolved on the papers. I did not
find the Respondents’
version to be fanciful and untenable.
[27]
Reference is made to
Dintsi
and Another v Van Breda and Another
[8]
where the Court held:
“…
The
original action is for ejectment as they were unlawful occupiers in
terms of ESTA whereas the matter before that Court was whether
interim relief should be granted, which has its own requirements. The
original action is for the ejectment of the Defendants on
the premise
that they are unlawful occupiers.
The
Defendants filed a counter action to be declared occupiers in terms
of ESTA
.
The application before this Court is somewhat different from the
issue which the Magistrate must determine.
The
present application is for an interim interdict which is not what the
Magistrate will be called upon to decide
.
The
interim interdict has its own requirements which are different from
the requirements.
”
[my
emphasis]
[28]
I am criticized for not appreciating that the case is on point.
It is submitted that the interdict
application, which the Respondents
instituted, has been overtaken by events and became moot, as the
application did not succeed.
I already dealt with the status of
that matter and do not agree. Until that matter is finally
disposed of, or withdrawn,
it remains alive for adjudication.
As a fall-back position, they submit that I should have concluded
that the institution
by the Respondents of case number 1993/2022
could not be utilized to frustrate the termination of the dispute
because it was instituted
maliciously with ill intent and ulterior
motive to frustrate and circumvent the eviction proceedings. It
was only instituted
after the Respondents received the notice to
vacate. As with many of the other disputes between the parties,
I cannot determine,
as a Court who hears the matters would be able,
to conclude that it was malicious and with ill intent and ulterior
motive.
I still maintain that the case is distinguishable.
[29]
It is argued that the matter is also to be determined in the interest
of justice. In
Eksteen
v Road Accident Fund
[9]
the Court held:
“
Although
the claim for non- pecuniary loss has not prescribed it is a
composite part of the claim emanating from one collision.
It is
pending in the Magistrate’s Court. It would be in the interest
of justice, fair and convenient that the entire claim
be adjudicated
in the same forum.”
[30]
The Supreme Court of Appeal
[10]
upheld the appeal and the defence of
lis
alibi pendens
.
RESPONDENTS’
ARGUMENTS:
[31]
Adv Meijers (with Adv Lebona) for the Respondents, submit that the
crux of the application for leave turns
on the exercise of a judicial
discretion that was exercised and whether an appeal would have
reasonable prospects for success.
They submit that the
discretion exercised is a discretion in the true sense and all
options were considered.
[11]
The Court has inherent power to regularize its own process in terms
of Section 173 of the Constitution and the options by this
Court
pertaining to
lis
pendens
was
wide enough to grant or refuse to grant a postponement/stay.
[32]
This also applies to whether the matter should be referred to oral
evidence or not. They submit that
the First Respondent, being a
JV has its own rights and obligations and fulfils a dual purpose of
Government namely to create a
class of black commercial farmers and
ensure sustainable commercial production of land and food security.
[33]
With reference to
lis
pendens
they
refer to
Caesarstone
Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others
[12]
where
the Supreme Court of Appeal held that the requirements to meet
lis
pendens
have
been relaxed and a Court may grant a stay even where such relaxed
requirements are not met. If the requirements of
lis
pendens
are
shown, a Court will only refuse to stay if facts are shown based on
fairness and convenience why it should not be granted.
[34]
The central issue in this application (the right to possession) is
subject to pending action under case number
1993/2022, between
substantially the same parties. To a lesser extent, the same
argument applies to case number 55/2022.
The history of the
engagements, the correspondence and actual conduct can be accepted to
indicate that rights were acquired.
Mr Lethoba has interests
and rights of possession and would be left in the cold if the
eviction were granted. Such rights
of possession and such
constitutional rights are to be considered together by the trial
Court where all the public policy factors
are taken into account.
The pending matter should not be dealt with piecemeal. There are real
disputes of fact pertaining
to the partly written, partly oral
stipulatio alteri
/amended
stipulatio alteri
accepted by
the First Respondent and as to knowledge of Kopano 2 of the rights of
the Company. All parties were aware of the
dispute of fact.
The Court did not misdirect itself as to the identity of the JV.
CONCLUSION
[35]
Notwithstanding prolonged and thorough argument when the matter was
initially heard as well as helpful and
able argument in the
applications for leave to appeal, I cannot find any basis for
concluding that the Supreme Court of Appeal
would come to a different
conclusion.
[36]
I ordered a stay of the proceedings and that the costs in the main
application stand over for later adjudication.
The Court hearing the
evidence under the consolidated case numbers would determine the
rights between the respective parties. This
is especially so when the
cases would be consolidated as argued by the First to Fifth
Applicants.
[37]
The Second to Fifth Respondents interest in the JV will eventually be
determined. It appears that the
First to Fifth Respondents came
to this Court not appreciating the test to be applied in respect of
locus standi
,
lis pendens,
factual disputes and the
exercise of a discretion. In dismissing their application, it
would be in my view be unfair to order
them to pay costs of their
application for leave.
[38]
The Sixth to Nineth Respondents, however, have the ability and
resources to appreciate the risks and tests
applied. I am not
convinced by any of the grounds of appeal of any of the Sixth to
Nineth Respondents and costs should follow
the result.
[39]
The Sixth to Nineth Respondents were represented by two counsel. The
Respondents were similarly represented.
The Respondents prayed for
the costs of two counsel. The applications were grounds for leave
were comprehensive, the arguments
intricate and in my view justifies
the costs of two counsel.
[40]
I therefore make the following order.
ORDER
1.
The First to Fifth Applicants’
application for leave to appeal is dismissed.
2.
The Sixth to Nineth Applicants’
application for leave to appeal is dismissed.
3.
The First to Fifth Applicants and the
Respondents each pay their own costs of the First to Fifth
Applicants’ application.
4.
The Sixth to Nineth Applicants pay the
Respondents’ costs, which includes the costs of two counsel.
PR
CRONJé, AJ
For
the First to Fifth Applicants:
Adv
J. Vilakazi
Jam
Jam Attorneys Inc.
Rampai
Attorneys
For
the Sixth to Nineth Applicants:
Adv
T. Seneke SC
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]
Kometsi
N.O and Others v Kopano Uitkyk Farming Enterprise (Pty) Ltd and
Others
(223/2023)
[2023] ZAFSHC 290 (20 July 2023)
[2]
2020
(7) BCLR 779 (CC)
[3]
At para [28]
[4]
Pleadings, p. 96 - 97
[5]
I did not refer the matter for oral evidence and pended the
finalisation of the matter until the other cases have determined
the
respective rights. It may well be that if that litigation goes
against the Respondents in this matter, eviction may inevitably
follow.
[6]
(286/17)
[2018] ZASCA 24
(23 March 2018)
[7]
(311/09)
[2010] ZASCA 66
;
2011 (1) SA 8
(SCA) ;
[2011] 1 All SA 1
(SCA) (24 May 2010)
[8]
(LCC15/2019)
[2019] ZALCC 29
(10 May 2019) para 10.1
[9]
(4972/2016)
[2019] ZAFSHC 46
(2 May 2019)
[10]
Eksteen
v Road Accident Fund
(873/2019) [2021] ZASCA 48; [2021] 3 All SA 46 (SCA); 2021 (8) BCLR
844 (SCA) (21 April 2021)
[11]
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and Another
(CCT198/14) [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR
1199 (CC) (26 June 2015) at para [82] – [97]
[12]
(741/12)
[2013] ZASCA 129
;
2013 (6) SA 499
(SCA);
[2013] 4 All SA 509
(SCA)
(26 September 2013)