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[2023] ZAFSHC 444
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Timac Agro South Africa (Pty) Ltd v Botes N.O. (4909/2020) [2023] ZAFSHC 444 (13 November 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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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.: 4909/2020
In
the matter between:
TIMAC
AGRO SOUTH AFRICA (PTY) LTD
Applicant
[Reg.
no. 2011[…]]
and
DARIA
BOTES N.O.
Respondent
[In
her capacity as Executrix of the deceased estate of
Dawie
Grobbelaar (Id. no. 9[…])]
CORAM:
VAN
ZYL, J
HEARD
ON:
15 JUNE 2023
DELIVERED
ON:
13 NOVEMBER 2023
[1]
The applicant approached court for an order in the following terms:
“
1.
That the settlement agreement concluded between the applicant and the
respondent parties on 13
October 2022 be made an order of court in
terms of Rule 41 …
2.
That a Writ of Execution be authorised against the moveable goods of
the deceased estate.
3.
Costs of the Application.”
Background:
[2]
The applicant sold and delivered fertilizer to the late Mr Dawie
Grobbelaar (“Mr
Grobbelaar”) during 2019. Mr
Grobbelaar failed to pay the purchase price to the applicant,
whereupon the applicant
instituted action against Mr Grobbelaar on 11
December 2020 for payment of the outstanding balance, with interest
and costs.
Mr Grobbelaar defended the action and filed a
Special Plea and Plea, whereupon the applicant filed a replication.
[3]
On 24 October 2021 Mr Grobbelaar passed away. On 20 January
2022 the respondent
was duly appointed as the executrix of the
deceased estate of Mr Grobbelaar by the Master of the High Court,
Bloemfontein.
In terms of the Will of Mr Grobbelaar the
respondent was appointed as the sole beneficiary and heir of Mr
Grobbelaar’s estate.
[4]
On or about 13 October 2022 the applicant and the respondent
concluded a settlement
agreement in respect of the aforesaid action.
In terms of the settlement agreement, attached to the founding
affidavit as
annexure “TS1”, the parties,
inter alia,
agreed as follows:
1.
That the respondent makes payment
to the applicant in the amount of
R920 879.00 in full and final settlement of the aforesaid action.
2.
That the respondent undertakes
to pay the settlement amount on or
before 23 January 2023.
3.
That the applicant will be entitled
to approach court to have the
settlement agreement made an order of court in terms of Rule 41.
[5]
The respondent failed to make payment of the settlement amount by 23
January 2023,
whereupon the applicant issued the present
application. The respondent opposed the application, whereupon
an answering affidavit
and replying affidavit were duly filed.
The
hearing of the application:
[6]
At the commencement of the hearing Mr Zietsman, appearing on behalf
of the applicant,
indicated that the applicant is not persisting with
prayer 2 of the notice of motion and is only seeking an order in
terms of prayers
1 and 3 of the notice of motion.
[7]
Although the respondent initially averred that she signed the
settlement agreement
under undue influence and also questioned the
authority of the deponent to the founding affidavit to have deposed
to the said affidavit,
Mr Ploos van Amstel, appearing on behalf of
the respondent, indicated at the commencement of the hearing that the
respondent is
not persisting with these two points of opposition.
The
Master of the High Court, Bloemfontein:
[8]
In the answering affidavit, read with the heads of argument of the
respondent, the
respondent,
inter alia,
raised the point that
the applicant should either have cited the Master as a party to the
application or served the application
on the Master since has a
direct interest in the subject matter of the application.
[9]
The essence of the present dispute between the parties involve the
administration
of the estate of the late Mr Grobbelaar and the
respondent’s duties and obligations in respect thereof.
The provisions
of section 35 of the Administration of Estate Act, 66
of 1965, also read with section 102 thereof, are central to the
adjudication
of the application.
[10]
Although Mr Zietsman contended the contrary, I have to agree with the
contention of Mr Ploos
van Amstel that the Master has a direct and
substantial interest in this application. The Master should
indeed either have
been cited as a party to the application or the
application papers should have been served on the Master.
[11]
In my view it would be improper to adjudicate this application
without it having been served
upon the Master. In addition,
considering the nature and facts of the present disputes between the
parties, it would be incumbent
upon the Master to file a report in
this application.
Additional
relief and costs:
[12]
In my view it may become necessary for the parties to file
supplementary affidavits and/or supplementary
heads of argument after
having obtained the Master’s report. I consequently deem
it apposite that leave be granted
to the parties to do so, should one
or both of them deem it necessary.
[13]
Since it is presently uncertain when the Master’s report will
be filed and whether the
parties will be filing supplementary papers,
I consider it apt that the application in the meantime be removed
from the roll instead
of it being postponed. The parties will
then be entitled to re-enrol the application for hearing once the
application is
ripe for hearing.
[14]
With regard to the wasted costs of 15 June 2023, Mr Ploos van Amstel
submitted that the applicant
should be ordered to pay same, since the
applicant is
dominus litis
and consequently had the obligation
to have either cited the Master or to have served the application
upon the Master. Mr
Zietsman, on the other hand, submitted that
the wasted costs should stand over for later adjudication, since the
contents of the
Master’s report may have an influence when
considering an appropriate costs order. I agree with the
submission of Mr
Zietsman.
Order:
[15]
I consequently make the following order:
1.
The application is removed from the roll.
2.
The applicant is ordered to serve a copy of the application
papers
and the parties’ respective heads of argument on the Master.
3.
The Master is requested to file a report in respect of
the
application.
4.
Leave is granted to the parties to file supplementary
affidavits
and/or supplementary heads of argument after receipt of the Master’s
report, should one or both of the parties
deem it necessary.
5.
The wasted costs of 15 June 2023 stand over for later
adjudication.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv.
P Zietsman SC
Instructed
by
:
Horn
& Van Rensburg Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
PC Ploos van Amstel
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN