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[2023] ZAKZPHC 53
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Fourie and Another v Tropical Winter Trading (Pty) Ltd and Another (389/2021P) [2023] ZAKZPHC 53; [2023] 3 All SA 429 (KZP) (22 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No: 389/2021P
In
the matter between:
HENDRIKA
PETRONELLA FOURIE
FIRST APPLICANT
KARLIEN
KRUGER
SECOND APPLICANT
and
TROPICAL
WINTER TRADING (PTY) LTD
FIRST
RESPONDENT
REGISTRAR
OF DEEDS: PIETERMARITZBURG
SECOND RESPONDENT
ORDER
The
following order shall issue:
1.
The applicants be joined in the ex parte application of Tropical
Winter Trading (Pty) Ltd (Case Number: 3635/19P) as first and second
respondents respectively.
2.
The order granted by Seegobin J, on 26 February 2020, in the ex parte
application
of Tropical Winter Trading (Pty) Ltd (Case Number.
3635/19P), is rescinded and set aside.
3.
The registration and transfer of the following properties
(collectively referred to
as (“the farms”) to the first
respondent is set aside:
3.1
the Remainder of the Farm Glen Ashton, No. 8589, Registration
Division HS, Province of KwaZulu-Natal,
held under title deed number:
T 23804/2020, in extent 191, 6466 (one hundred and ninety – one
comma six four six six) hectares,
first registered by Crown Grant
Number G8589/1914 and previously held by Deed of Transfer Number:
T1752/1962;
3.2
Portion 6 (of 3) of the Farm Twyfelhoek No. 3339, Registration
Division HS, Province of KwaZulu –
Natal, held under title deed
number: T23804/2020, in extent 192, 6811 (one hundred and ninety –
two comma six eight one one)
hectares, first transferred by Deed of
Partition Transfer Number: T2420/1927, and previously held by Deed of
Transfer Number: T1752/1962;
and
3.3
The Farm Moeders Rus No. 11657, Registration Division HS, Province of
KwaZulu – Natal,
held under title deed number: T23804/2020, in
extent 487,7306 (four hundred and eighty-seven comma seven three zero
six) hectares,
first registered by Crown Grant Number G11657/1930 and
previously held by Deed of Transfer Number: T1752/1962.
4.
The first respondent be ordered to take all steps necessary, within 1
(one) month
of service of this order upon it, to effect transfer of
the farms to the erstwhile owners, or their successors in title.
5.
In the event of the first respondent failing, refusing, or neglecting
to comply
with prayer 4:
5.1
that the applicant(s) be authorised to instruct a conveyancer to
prepare the necessary documents to
effect transfer of the farms to
the erstwhile owners, or their successors in title;
5.2
that the first respondent be ordered to sign the documents referred
to in prayer 5.1, within five (5)
days of demand; and
5.3
that the Sheriff be authorised to take all steps contemplated in
prayer 5.2, in and on the
first respondent’s stead and behalf,
should the first respondent fail to do so.
6.
The cost of the application, and the cost associated with giving
effect to the
relief prayed for in the preceding paragraphs, be paid
by the first respondent, jointly and severally with its attorneys,
Messrs.
Kruger Attorneys and Conveyancers of 32 Mouton Street,
Horizon, Roodepoort, the one paying, the other to be absolved, on the
scale
as between attorney and client.
7.
The Registrar of this Court forward a copy of this judgment to the
Legal Practice
Council to investigate the conduct of the attorneys
referred to in paragraph 6.
JUDGMENT
ZP
Nkosi J
Introduction
[1]
The applicants apply to be joined, in terms of Uniform rule 12, as
respondents in
the ex parte application brought by the first
respondent in this court, under case number 3635/19P; and consequent
upon that, for
a rescission of the order granted by this court (per
Seegobin J) on 26 February 2020, as well as relief aimed at giving
effect
to the rescission of that order. Upon rescission of the
aforementioned order, the applicants seek an order that the
registration
and transfer of three farms, namely, the Remainder of
the Farm Glen Ashton; Portion 6 (of 3) of the Farm Twyfelhoek; and
the Farm
Moeders Rus to the first respondent be set aside. And
further that the first respondent be ordered to take all steps
necessary
to effect transfer of the farms to the erstwhile owners, or
their successors in title, with alternative relief should the first
respondent fail to do so.
[2]
The relief sought is assailed by the first respondent on various
grounds to be traversed
in the judgment. In particular, the first
respondent states that the rescission relief is brought on the
incorrect rule and that
there is no case made out as per the rule or
as per the common law requirements. The second respondent has not
filed papers to
oppose the application.
Case
history
[3]
On 29 May 2019 the first respondent, a private registered company,
brought an ex parte
application in this court, under case number:
3635/19P, seeking the following relief:
[1]
‘
1.
That the Applicant is entitled
to bring this Application on an
ex parte
basis;
2
That the Applicant be granted full access and possession of the
property known
as
Farm Glen Ashton 8589 HS, P.O
(Pietermaritzburg), KwaZulu-Natal held under Title Deed 1752/1962
measuring 191.447 HA
for the purposes of creating and maintaining
firebreaks on the Property for the duration of the interim order in
terms of the National
Veld and Forest Fire Act 101 of 1998 at the
Applicant’s own cost;
3.
That the Applicant shall within 14 (fourteen) days after the granting
of the
interim order publish the said order in 1 (one) national and
one (1) local newspaper in circulation in the Magisterial District
of
Newcastle for a period of 30 (thirty) days to inform the owners of
the Property of the interim order;
4.
The Applicant shall within 15 (fifteen) days after the granting of
the interim
order attend to the Master of the High Court as well as
the Department of Home Affairs to establish the status of the owners
or
successors in title of the Property;
5.
The Applicant shall within 12 (twelve) months after the granting of
the interim
order file Supplementary Affidavits with the above
Honourable Court to provide necessary information regarding the
ownership of
the Property and attempts to trace the owners and their
successors in title and shall enrol the matter for adjudication at
the
first available date wherein the Applicant may either request
extension of the interim order or such relief that is appropriate
after information is gathered;
6.
That any interested party may at any time for the duration of the
interim order
anticipate the return date by giving due notice to the
Applicant;
1.7
The costs for this application be paid by the Applicant.
1.8
Further and/or alternative relief.’
[4]
The relief sought was granted by this court (per Jikela AJ) in the
terms set out in
the notice of application save that the time period
to file a supplementary affidavit was reduced from 12 months to six
months.
[2]
Thereafter, the first
respondent allegedly complied with the terms of the order by
preparing firebreaks on the farm, and by advertising
the order in the
manner prescribed.
[5]
On 29 October 2019 the first respondent delivered, as directed in the
order, a supplementary
affidavit in which it reported back to the
court on the manner it complied with the order. Without effecting an
amendment to the
notice of application, the first respondent, in the
supplementary affidavit, requested the court to authorise the
transfer of the
property into the name of the first respondent, based
on a valuation obtained by a sworn valuator, and against a purchase
consideration
to be paid into the Guardian’s Fund, as
administered by the Master of the High Court.
[3]
[6]
On 4 December 2019, and on the basis of the supplementary affidavit,
this court (per
Bezuidenhout AJ) granted an order in the following
terms:
[4]
‘
1.
The access of the Applicant to the Property as per the order dated 6
June 2019 at paragraph
3 of the said Order is extended until 26
February 2020;
2.
The Applicant is granted consent to file further Supplementary
Affidavits upon
receipt of a valuation report regarding the valuation
of the Property, which valuation will be attached to the
Supplementary Affidavit;
3.
The Notice of Set Down as well as a notice calling upon intended
parties related
to the owners of the property to contact Applicant’s
attorney of record will be published in one local newspaper
circulated
within the district of Newcastle at least 2 weeks prior to
the date of hearing in 26 February 2020.
4.
The costs of the
ex parte
application be paid by the
Applicant.’
[7]
On 11 February 2020 the first respondent, as mandated by the order of
4 December 2019,
delivered a further supplementary affidavit in which
it reported back to the court on the way it complied with the
order.
[5]
The report was to the
following effect:
(a)
the court order of 4 December 2019 was advertised in the manner
prescribed;
(b)
a sworn valuator did a valuation of the farm and that the value of
the farm was R 1 254
687.03 (one million two hundred and fifty-four
thousand, six hundred and eighty-seven rand and three cents); and
(c)
no one contacted the first respondent pursuant to the advertisement
having placed
in the manner prescribed in the order.
[8]
On 26 February 2020, and pursuant to the delivery of the second
supplementary affidavit,
this court (per Seegobin J) granted an order
in the following terms:
[6]
‘
1.
The Applicant shall make payment in the amount of R1 254 687.03 into
the Guardian’s
Fund within a reasonable time.
2.
The funds deposited by as per paragraph 1 hereto into the Guardian’s
Fund
will be for the benefit of all interested parties yet unknown in
relation with the transfer of the immovable property as ordered
herein.
3.
A copy of this Order will be served by way of Sheriff of the High
Court on the
Master of the High Court of South Africa within 7
(seven) days after the granting of this Order.
4.
The Registrar of Deeds will upon confirmation of the payment of the
funds as
per paragraph 1 hereto, as well as service of this Order by
the Sheriff of the High Court, transfer the property
held under
Title Deed 1752/1962 measuring 871.36 HA
(“the Property”)
into the name of the Applicant or its nominee which transfer will be
attended to by Kruger Attorneys
& Conveyancer with telephone
number (011) 766 1428.
5.
The Registrar of Deeds is hereby authorised to do all such things and
the Applicant
is authorised to sign all such documents as is
necessary to transfer the Property into the name of the Applicant.
6.
No order as to costs.’
Factual
background
[9]
The first applicant’s father, Hendrik Petrus Geldenhuys
(“Geldenhuys”)
was the owner of the following farms:
(a)
the Remainder of the Farm Glen Ashton, No. 8589, Registration
Division HS, Province of KwaZulu-Natal,
held under title deed number:
T23804/2020, in extent 191, 6466 hectares, first registered by Crown
Grant Number G8589/1914 and
previously held by Deed of Transfer
Number: T1752/1962;
(b)
Portion 6 (of 3) of the Farm Twyfelhoek No. 3339, Registration
Division HS, Province of
KwaZulu-Natal, held under title deed number:
T23804/2020, in extent 192, 6811 hectares, first transferred by Deed
of Partition
Transfer Number: T2420/1927, and previously held by Deed
of Transfer Number: T1752/1962; and
(c)
the Farm Moeders Rus No. 11657, Registration Division HS, Province of
KwaZulu-Natal,
held under title deed number: T23804/2020, in extent
487,7306 hectares, first registered by Crown Grant Number G11657/1930
and
previously held by Deed of Transfer Number: T1752/62 (referred to
as “the farms”).
[10]
Geldenhuys was first married to Getruida Jacoba Geldenhuys (neè
De Wet), and after she
passed away, to Catharina Wilhelmina
Geldenhuys (neè Beukes). All in all, twelve children were born
of Geldenhuys’
two marriages.
[11]
Geldenhuys passed away on 31 December 1960. Catharina Wilhelmina
Geldenhuys (“Catharina”)
was appointed executrix of his
deceased estate in terms of Letters of Administration No. 137/61
issued in her favour by the Master
of the High Court of South Africa
(Orange Free State Provincial Division, as it then was), on 6
February 1961.
[12]
In his last will and testament, dated 14 November 1954, Geldenhuys
bequeathed the farms to his
six sons, and the spouses of his six
daughters, by substitution. The heirs were the following:
(a)
Frans Johannes Geldenhuys, born on 3 July 1905;
(b)
Willem Daniel Van Niekerk, born on 2 November 1897;
(c)
Nicolaas Gerhardus Johannes Oosthuizen, born on 9 November 1899;
(d)
Jacobus Ignatius Geldenhuys, born on 21 October 1910;
(e)
Michiel Josias Beukes, born on 2 February 1917;
(f)
Johannes Stephanus Viljoen, born on 23 September 1906;
(g)
Hendrik Petrus Geldenhuys, born on 7 September 1927;
(h)
Gert Stephanus Kok, born on 24 October 1914;
(i)
Pieter George Slabber van Zyl, born on 14 July 1911;
(j)
Hermanus Christiaan Michiel Geldenhuys (the second applicant’s
father)
born on 8 August 1931;
(k)
Catharina Wilhelmina Maria Geldenhuys, born on 14 November 1934; and
(l)
Hendrika Petronella Geldenhuys (the first applicant) born on 4 June
1941.
[13]
On 16 March 1962 the farms were transferred to the heirs, in
undivided shares, by the Registrar
of Deeds for the Natal Province
(as it was then) under Deed of Transfer Number: T1752/1962.
[7]
After the farms were registered in their names, the heirs, as
co-owners, leased the farms to one Danie du Toit. The rental was
used
for the upkeep and maintenance of the farms, as well as municipal
rates and taxes.
[14]
From 1991, and after his retirement, the second applicant’s
father (and first applicant’s
brother) -Hermanus Christiaan
Michiel Geldenhuys was given permission by the co-owners to utilise
the farms to graze livestock,
free of rent, on condition that he
would be responsible for the upkeep and maintenance of the farms, as
well as municipal rates
and taxes. He utilised the farms until his
death in December 2012. His undivided share in the farms was
bequeathed to his daughters,
the second applicant and her sister,
Lizelle Geldenhuys.
[15]
The second applicant was appointed as the executrix of her father’s
estate.
[8]
It appears that a
final liquidation and distribution account was prepared in respect of
his estate but the estate has not yet been
finally distributed.
[9]
[16]
After the demise of the first applicant’s brother, two of the
first applicant’s great-nephews,
Herman Geldenhuys and Paul
Geldenhuys and her son, Phillipus Jurie Wynand Fourie (Flippie),
asked permission from the first applicant
to utilise the farms to
graze cattle. At the time, the first applicant was the only surviving
co-owner. The first applicant gave
them permission to utilise the
farms on condition that they would be responsible for its upkeep and
maintenance, as well as municipal
rates and taxes.
[17]
From 2012 they have grazed cattle on the farms, using part of the
farms for summer grazing, and
the other parts for winter grazing. It
appears that they do not reside on the farms but they have farm
labourers who do, who also
keep livestock on the farms.
[18]
On 11 March 2020, a certain Zelda Strauss (“Strauss”)
from a company called Mulilo
Renewable Project Developments
(“Mulilo”) made enquiries from Paul Neethling, an
attorney in Memel, if he knew who
the owners of the farm Moeders Rus
were, because the company was interested in erecting wind turbines on
the farm to generate and
sell electricity. Strauss was then referred
to a company in Newcastle called Ni-Da Transport (“Ni-Da”).
[19]
It appears the proprietor of Ni-Da was well acquainted with the
residents of Newcastle and it
was believed that he might know who the
owners were. Indeed, Strauss was then referred to one of the first
applicant’s nieces,
Gerda Greyvenstein (“Greyvenstein”),
who is the daughter of Gert Stephanus Kok, and who lives in
Newcastle.
[20]
It appears that Strauss then explained to Greyvenstein that she was
looking for the owners of
the farm Moeders Rus and that Mulilo was
interested in erecting wind turbines on the farm. It seems
Greyvenstein referred Strauss
to the first applicant’s nephew,
who in turn referred Strauss to Flippie.
[21]
On 13 March 2020 Strauss contacted Flippie and explained to him about
Mulilo’s interest
to secure an option to erect 30 wind turbines
on the farm for which they will pay R10 000 per month, per turbine,
for a period
of 25 years, should the option be exercised. Flippie
referred Strauss to the second applicant.
[22]
On 17 October 2020, Strauss formalised Mulilo’s proposal, via
an email sent to the second
applicant.
[10]
Attached to the e-mail was an option and notarial lease
agreement.
[11]
[23]
The second applicant obtained a mandate from the first applicant, and
the progeny of the deceased
co-owners, to negotiate the terms of the
option with Mulilo. On 22 October 2020, while the second applicant
was still negotiating
the terms of the lease agreement, Strauss
informed her that when she performed a deed search in respect of the
Moeders Rus property,
she noted that the property was registered in
the name of an entity called Tropical Winter Trading (Pty) Ltd (“the
first
respondent”).
[24]
On 4 November 2020 Strauss sent an email to the second applicant and
Flippie to which was attached
a copy of the most recent deed of
transfer of the farms.
[12]
The
deed of transfer not only confirmed that the farm Moeders Rus was
registered in the name of the first respondent, but also
the other
two farms.
[13]
[25]
On 9 November 2020 the second applicant contacted the progeny of the
deceased co-owners to inform
them of the developments regarding the
transfer of the farms. On 24 November 2020, the second applicant
contacted the rest of the
family who had an interest in the farms to
obtain a mandate to apply for the judgment and order granted in the
ex parte application
to be rescinded and set aside; and for the
transfer of the properties to the first respondent to be reversed.
The
applicants’ case
[26]
The applicants aver, firstly, that the application upon which the
final order was premised did
not disclose a cause of action and it
was legally incompetent for the court to have made such order. They
contend that the court
lacked jurisdiction to authorise the transfer
of the farms to the first respondent.
[27]
The applicants further submit that there is no provision in any law
empowering a court (or indeed,
any other administrative body), to
authorise a transfer of immovable property through a private
individual, which has the effect
of detracting from a person or
entity’s real right to that property. They aver that if the
first respondent’s argument
is that the land in question (the
farms) was res derelicta, and as a result res nullius, to which they
argue it was not, the land
which is abandoned by its owners would
revert to the State and does not become res nullius.
[28]
Therefore, the applicants submit that what the court order amounted
to is expropriation of land
without compensation and without any
statutory authority empowering it to do so. Furthermore, since
expropriation without compensation,
even by an authority statutorily
empowered to do so, is expressly prohibited by s 25 of the
Constitution, the court is therefore
in direct violation of the
rights of the owners and descendants of the farms.
[29]
If it is accepted, they argue, that the court had statutory authority
to authorise the transfer
of the property and that payment into the
Guardian’s Fund constituted compensation, the procedures set
out in the Expropriation
Act 63 of 1975 should have been followed.
That is, compensation had to be calculated in a manner consistent
with s 25(3) of the
Constitution, with a solatium of ten percent
which is normally paid in addition to the actual loss incurred to the
owner by expropriation.
[30]
Secondly, the applicants aver that the order should be rescinded and
set aside as a result of
material non-disclosure and the deliberate
misleading of the court by the first respondent and its attorneys of
record. The facts
not disclosed were the following:
(a)
In the notice of motion reference is only made to the following
property: The Remainder
of the Farm Glen Ashton, No 8589,
Registration Division HS, Province of KwaZulu-Natal, held under title
deed number: T23804/2020,
in extent 191, 6466 (one hundred and
ninety-one comma six four six six) hectares, first registered by
Crown Grant Number G8589/1914
and previously held by Deed of Transfer
Number: T1752/1962. All averments in the founding affidavit related
to this property and
the relief sought in the notice of motion only
related to this property. Nowhere, in the founding affidavit, is
reference made
to the other two farms, Twyfelhoek and Moeders Rus and
none of the relief sought in the notice of motion related to them.
This,
notwithstanding the fact that the first respondent already knew
Glen Ashton formed part of the three farms held under the same title
deed number.
[14]
(b)
The relief sought in the notice of motion only related to creating
and maintaining firebreaks
on the farm Glen Ashton in terms of the
National Veld and Forest Act. The founding affidavit covered the same
subject matter, and
no mention is made of the first respondent’s
intention to acquire this property or any other property for that
matter. Consequently,
the court order granted on 6 June 2019, only
related to the farm Glen Ashton to create and maintain firebreaks
thereon. The supplementary
affidavit
[15]
similarly only mentions the farm Glen Ashton, and no mention is made
of the farms Twyfelhoek and Moeders Rus. The advertisements
placed in
the newspapers relating to the aforementioned order also only made
mention of the farm Glen Ashton. Yet, without any
amendment to the
notice of motion, the first respondent applied for relief aimed at
the acquisition of the farm Glen Ashton and,
peculiarly, the
order
[16]
granted only made
mention of “the Property”. In this regard, it is the
applicants’ submission that the court
is not alerted to the
fact that the original notice of motion and affidavits filed on
record only dealt with Glen Ashton and not
the other two farms. The
court is also not alerted to the fact that in none of the notices
published were the other two farms mentioned.
Consequently, the court
order granted on 26 February 2020
[17]
does not refer to the farm Glen Ashton but only to the title deed
number, which includes all three farms. From the foregoing, the
applicants contend that from the outset the issue of creating and
maintaining firebreaks was merely a ruse, and the real intention
of
the first respondent and its attorneys were to acquire the farms in a
dishonest manner by deliberately misleading the court.
(c)
The final order was obtained by fraud, which includes perjury in that
the first respondent,
or the deponent to the founding and
supplementary affidavits, gave incorrect evidence, which evidence was
given fraudulently and
with intent to mislead the court. Firstly, the
deponent lied in the founding affidavit that there are no structures
on the farm
and that there are no persons exercising occupation or
control over the farms, which is patently false. The deponent made
allegations,
which are so palpably implausible and patently false
that the first respondent could not trace the owners of the farm.
With farm
labourers living on the farm, a very simple enquiry with
them would have led the first respondent to the persons running the
farms
and the surviving co-owners thereof. In this regard, the
applicants found it astounding that Strauss, who is not from the
area,
had no difficulty in tracing the surviving owners of the farms.
Yet the first respondent, who is from the area, and whose properties
are adjacent to the farms found it impossible to do so. With the
deponent attaching the final liquidation and distribution account
[18]
to the founding affidavit, a simple enquiry with the Master of the
High Court would have provided the first respondent with the
details
of the executrix of the estate, and the details of the heirs.
(d)
The deponent to the affidavits filed on record by the first
respondent makes no mention
of the fact that there are cattle grazing
on the farms, which would have been a clear indication that the farms
are being utilised.
Most telling, is the fact that although the farms
are landlocked, Paul Geldenhuys could access them through an access
pass,
[19]
issued by Vulintaba
County Estate (an entity of the first respondent). It is noted that
the pass was issued, in June 2019, a month
after the ex parte
application was launched, and eight months before the first
respondent obtain the final order. So, it is argued,
at the time when
the final order was obtained, the first respondent knew that the
facts upon which the relief sought was premised
were not true.
[31]
The applicants aver that neither of them had knowledge of the ex
parte application and the subsequent
orders granted. And, neither of
them was given proper notice of the proceedings. The advertisements
in the newspapers did not come
to their attention and they only
became aware of the fact that an order was granted in the manner
described herein earlier.
[32]
Therefore, they aver, this application is brought in terms of Uniform
rule 42(1), alternatively
under common law, alternatively based on a
breach of a fundamental right, either through the development of the
common law, or
through an appropriate constitutional remedy. The
applicants submit that they clearly have a direct and substantial
interest in
the order granted, and as such should be joined to the ex
parte application.
[33]
The applicants submit that based on the allegations set out in the
founding affidavit; the evidentiary
material attached as proof of
these allegations; the confirmatory affidavits of Flippie and the
second respondent; and inferences
that may properly be drawn from a
conspectus of the evidence, the costs of the application are to be
paid by the first respondent,
jointly and severally with its
attorneys, Messrs Kruger Attorneys and Conveyancers, on the scale as
between attorney and client.
The applicants further submit that the
conduct of the first respondent’s attorneys be referred to the
Legal Practice Council
for investigation, while that of the first
respondent, its directors and its legal advisor, to the Special
Investigative Unit (“SIU”)
for investigation.
The
first respondent’s case
[34]
As a starting point, the first respondent avers (in limine) that the
first applicant does not
have the necessary locus standi to bring the
application and no case for it has been made in her founding
affidavit. A claim that
an oral mandate was obtained from the “rest
of the family” who have not been identified and whose interest
has not
been divulged, does not suffice to prove that the applicants
have a genuine mandate to bring these proceedings.
[35]
Furthermore, since it is common cause that 11 of the original
co-owners became deceased, the
first respondent contends that the
co-owner’s beneficiaries or the executors of their estates
should have been joined to
the proceedings. As things stand, it is
argued, the court has no insight into the affairs of the deceased
co-owner’s estates
and whether or not same have been wound up,
in accordance with the laws regarding deceased estates.
[36]
The first respondent submits that since payment has been made to the
Guardian’s Fund, as
administered by the Master of the High
Court, in the amount of R1,2 million, all parties connected to the
erstwhile co-owners of
the farms may have interest in the amount, in
that they may have a claim to such fund. The first respondent thus
contends that
the non-joinder of interested parties is prejudicial.
[37]
It is further submitted that the second applicant, while appointed
executrix of the estate of
HCM Geldenhuys, and the estate not finally
distributed, and no transfer of the undivided share of the farms
having yet taken place,
she has no real right to the farms. And thus,
has no locus standi to bring these proceeding against the first
respondent.
[38]
The first respondent further avers that the applicants accused it and
its legal practitioner
of fraudulent and sinister conduct which is
not supported by the facts of the matter in any anyway whatsoever.
The purpose of the
application brought under case number 3635/2019 P
was to address the serious concerns regarding veld fires that are a
common place
in the region in which the first respondent owns
properties.
[39]
It is averred by the first respondent that the entire area where the
properties of the first
respondent is situated is an extreme veld
fire risk area. So, the order granted on 6 June 2019 was specifically
for access to the
farm Glen Ashton for the purposes of creating the
required firebreaks.
[40]
The matter was brought ex parte since the first respondent could not
trace any of the owners
as per the Deed of Transfer 1752/1962. The
status of the first applicant was unknown to the first respondent as
only the date of
birth was disclosed in the Deed of Transfer.
[41]
While the first respondent managed to obtain the liquidation and
distribution accounts, it was
not possible to ascertain the contact
details of the beneficiaries. In the meanwhile, the first respondent
has always had to pay
for firebreaks and take on the responsibility
of absent farm owners.
[42]
Due to the lack of response from any person (to the notices and
advertisements placed in the
local and national newspapers), the
first respondent proceeded to seek the assistance of the court in
order to take transfer of
the farms for the reasons set out in the
various affidavits, as attached to the founding affidavit. In this
regard, the first respondent
complied with the various orders of the
court and made payment for compensation to any interested party with
the Guardian’s
Fund to ensure that there is no prejudice to any
potential interested party, which funds are secure for a period of no
less than
30 years from date it was deposited with the Master.
[43]
It is averred that the first applicant, along with any other person
who may have an interest
in the farms through succession, have never
bothered to adhere to their statutory obligations in terms of the
farms, and simply
left it to the first respondent to foot the bill
for all the expenses in maintaining the firebreaks. The only reason,
it is stated,
the first applicant now appears on the scene is the
prospect of a potential lucrative commercial opportunity regarding
Moeders
Rus. Otherwise, for a period of 50 years, the farms have long
been forgotten and neglected.
[44]
The first respondent further avers that Vulintaba Country Estate
(“Vulintaba”), while
owned by the first respondent, is
managed by a separate juristic person, being the Home Owner’s
Association. Access to Vulintaba
is therefore not regulated by the
first respondent but by the Association; and the access pass issued
to Paul Geldenhuys was done
without its knowledge as the Association
administered its own affairs.
[45]
The first respondent submits that the first applicant has failed to
state why the rescission
application is made in terms of rule 42(1);
and why it was erroneously granted. It reiterates that the applicants
have not made
out a case per the rule nor the common law.
Issues
[46]
The first main issue to be determined is whether or not the
applicants made out a case to be
joined in the ex parte application
as respondents. If so and secondly, whether the judgment granted in
that application should
be rescinded in terms of rule 42(1),
alternatively the common law.
[47]
Before those issues may be traversed, the first respondent has raised
three points/ issues in
limine to be decided. The first one relates
to the locus standi challenge against the first applicant. The second
regards the non-joinder
of other persons related to the applicants
who may have an interest in the application. The third concerns the
locus standi challenge
against the second applicant. I propose to
deal with all three challenges together as they are factually closely
related to one
another.
Locus
standi and non-joinder
[48]
As a starting point, a person who has a right to sue or be sued in a
particular matter is said
to possess locus standi in iudicio in that
matter. The general rule of our law rests an onus upon the party
instituting proceedings
to allege and prove that such party has locus
standi to do so.
[20]
[49]
There are two tests to determine the locus standi of a party. First,
whether or not the party
concerned has a direct and substantial
interest in the matter and, second, whether or not that party has
legal capacity to litigate
in the matter. For purposes of this
matter, the second test does not come into play as both applicants
are obviously endowed with
such legal capacity and it is a non-issue.
[50]
The common law position is that a person wishing to institute or
defend legal proceedings must
have a direct and substantial interest
in the right, which is the subject matter of litigation, and in the
outcome of the litigation.
[21]
In other words, you cannot take over someone else’s legal
battle, simply because you wish to litigate for the fun of it or
for
some other reason. An indirect financial interest is not sufficient.
[51]
The requirements for a direct and substantial interest are summed up
as follows:
[22]
‘
(a)
the plaintiff/applicant for relief must have an adequate interest in
the subject matter of the litigation,
which is not a technical
concept but is usually described as a direct interest in the relief
sought;
(b)
the interest must not be too far removed;
(c)
the interest must be actual, not abstract or academic;
(d)
the interest must be a current interest and not a hypothetical one.’
(Footnote omitted.)
[52]
While the above is the general rule, it is important to bear in mind
that in respect of actions
based on the Bill of Rights, the
provisions of the Constitution have extended locus standi to persons
and groups who, in the past,
would not have been considered to have a
“direct and substantial interest” in a matter.
[23]
In terms of s 38 of the Constitution, relief may be sought by:
‘
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act in their own
name;
(c)
anyone acting as a member of, or in the interest of, a group or class
of persons;
(d)
anyone acting in the public interest; and
(e)
an association acting in the interest of its members.’
[53]
Uniform rule 12 provides for a person entitled to join as a plaintiff
(applicant) or liable to
be joined as a defendant (respondent) in any
action (application) to, on notice to all parties, at any stage of
the proceedings,
apply for leave to intervene as plaintiff
(applicant) or defendant (respondent). In
Tlouamma
and Others v Speaker of the
National
Assembly and Others
,
[24]
it was held that the test whether there has been non-joinder is
whether a party has a direct and substantial interest in the subject
matter of the litigation,
which
may be prejudicially affected by the judgment or order
.
[25]
[54]
The first applicant as co-owner in undivided shares of the farms, and
the second applicant as
executor of the deceased estate of the
co-owner in undivided shares of the farms have locus standi to be
joined and apply to have
a judgment and order granted ex parte and by
default rescinded and set aside, which judgment and order authorised
the transfer
of the farms to the first respondent. Their substantial
and direct interest is beyond reproach. It does not matter that the
“rest
of the family” who had an interest in the
properties have not been joined.
[55]
The application is aimed at the preservation or return of the common
properties. The first applicant
does not require the co-operation of
any fellow co-owners to institute and prosecute the claim. She can,
without the co-operation,
consent, or mandate of her fellow co-owner
or co-owners, institute a claim (rei vindicatio or possessory remedy)
for the recovery
of the common properties.
[26]
[56]
The second applicant is the executor of a deceased co-owner’s
estate. She stepped into
the shoes of the deceased co-owner and can
represent his estate.
[27]
[57]
In regard to the second applicant’s status in this application,
the following principle
is apposite:
[28]
‘
[10]
…In
Wille's Principles of South African Law
9
ed, at 673, under the heading 'Title of Beneficiaries', the
following is said:
“
However,
in the light of the modern system of administration of estates that
replaced the common law system of universal succession,
the right of
beneficiaries to inherit is no longer absolute nor an assured one: if
the deceased estate, after confirmation of the
liquidation and
distribution account, is found to be insolvent, none of the
beneficiaries will obtain any property or assets at
all…In any
event, an heir cannot vindicate from a third person property which
the heir alleges forms part of the deceased
estate;
only the
executor has that power
… The modern position is therefore
that a beneficiary has merely a personal right
,
jus in
personam ad rem acquirendam, against the executor and does not
acquire ownership by virtue of a will…”’
(My
emphasis.)
[58]
Like with the position of the first applicant, the second applicant
does not require the co-operation
of any fellow co-owners to
institute and prosecute this claim. She can, without the co-operation
or consent, or mandate of the
fellow co-owner(s), institute a claim
(rei vindicatio or a possessory remedy) for the recovery of the
common properties. I believe,
that the “rest of the family”
’s interest in the subject matter will not be prejudicially
affected by the judgment
or order ultimately issued.
[59]
From the aforegoing, none of the points raised in limine have merit.
They are, accordingly, dismissed.
Rescission
[60]
The rescission application, in this case, has been brought under a
new and different case number
because the second respondent, the
Registrar of Deeds, is also joined and the substantive relief
ad
factum praestandum
is sought against his Office. However, the
main proceedings being impugned forms part of the pertinent
evidentiary material to
be considered.
[61]
The applicants bring the application in terms of rule 42(1),
alternatively under common law based
on the following discernible
grounds:
(a)
material non-disclosure and
misrepresentation of facts; and
(b)
no cause of action; and legal incompetence of a court to make such an
order.
I defer to deal with the
grounds later in the judgment.
[62]
A court does not have inherent power to set aside its judgments.
However, a judgment by default
can be set aside under rule 42(1) or
under the common law.
[29]
Rule
42(1) empowers the court, mero motu, or upon the application of any
party affected, to vary an order or judgment erroneously
sought or
erroneously granted, in the absence of any party affected thereby.
[63]
The fact that the application for rescission is brought under a
specific rule does not mean that
it cannot be entertained under a
different rule or common law, provided the requirements thereof are
met.
[30]
The facts and
circumstances raised in the affidavits, sustain relief on any of the
grounds for rescission, even if not expressly
raised.
[31]
Rule
42(1)(a)
[64]
As alluded to above, this rule provides for the rescission of an
order or judgment “erroneously
sought or erroneously granted in
the absence of any party affected thereby”. Most often than
not, that relates to a judgment
granted by default.
[32]
[65]
The following principles govern rescission under this rule:
[33]
‘
[11.1]
the rule must be understood against its common-law background;
[11.2] the basic
principle at common law is that once a judgment has been granted, the
judge becomes functus officio, but
subject to certain exceptions of
which rule 42(1)
(a)
is one;
[11.3]
the rule caters for a mistake in the proceedings;
[11.4] the mistake
may either be one which appears on the record of proceedings
or
one which subsequently becomes apparent from the information made
available in an application for rescission of judgment;
[11.5] a judgment
cannot be said to have been granted erroneously in the light of a
subsequently disclosed defence which was
not known or raised at the
time of default judgment;
[11.6]
the error
may arise either in the process of seeking the judgment on the part
of the applicant for default judgment or in the process
of granting
default judgment on the part of the court
; and
[11.7] the
applicant for rescission is not required to show, over and above the
error, that there is good cause for the rescission
as contemplated in
rule 31(2)
(b)
.’ (My emphasis.) (Footnotes omitted.)
[66]
Unfortunately, it is not possible in the High Court to have a
judgment set aside merely because
both parties consent to it.
[34]
[67]
Once the court holds that an order or judgment was erroneously sought
or granted, it should without
further enquiry rescind or vary the
order and it is not necessary for a party to show good cause for the
sub-rule to apply.
[35]
In
general terms, a judgment is erroneously granted if there existed at
the time of its issue a fact of which the court was unaware,
which
would have precluded the granting of the judgment and which would
have induced the court, if aware of it, not to grant the
judgment.
[36]
[68]
An order or judgment is also erroneously granted if:
(a)
there was an irregularity in the proceedings;
[37]
and
(b)
if it was not legally competent for the court to have made such an
order.
[38]
Though,
in most cases the error concerned would be apparent from the record
of the proceedings, it has been held that in deciding
whether a
judgment was erroneously granted a court is not confined to the
record of the proceedings.
[39]
Common
law
[69]
Judgments may also be set aside at common law in the following
circumstances:
[40]
‘
(a)
fraud
;
(b)
justus error (on rare occasions);
(c)
in certain exceptional circumstances when new documents have been
discovered;
(d)
where judgment has been granted by default;
and.
(e)
in the absence between the parties of a valid
agreement to support the judgment, on the grounds of justa
causa.’
(My emphasis.) (Footnotes omitted.)
[70]
In relation to fraud, to have a judgment set aside a party must prove
that:
(a)
the successful party (or someone to his/her knowledge), gave
incorrect evidence;
(b)
that the evidence was given fraudulently and with intent to mislead
the court; and
(c)
that the false evidence was the cause of the unfavourable
judgment.
[41]
[71]
A court has power to rescind a judgment obtained on default of
appearance, provided that sufficient
cause for rescission has been
shown. This means the following requirements must be met:
(a)
that the party seeking relief must present a reasonable and
acceptable explanation for his/her
failure to appear (good cause);
and
(b)
that he/she has a bona fide defence which, prima facie, carries some
prospect of success.
[42]
[72]
In addition, it has been held that the High Court also has an
inherent jurisdiction to rescind
default judgments.
[43]
[73]
I turn to deal with the grounds for rescission. However, before I do
so in earnest, may I state
upfront that it is my considered view that
there are no material factual disputes and/or no genuine ones emerged
from the papers.
(a)
Material non-disclosure and misrepresentation of facts
[74]
It is trite in ex parte applications that all material facts must be
disclosed which might influence
a court in coming to a decision.
[44]
The legal principle is that the non-disclosure or suppression of
facts need not be wilful or mala fide to incur the penalty of
rescission and the court, apprised of the true facts, has the
discretion to set aside the order obtained on material facts not
disclosed or to preserve it. Unless there are very cogent practical
reasons why an order should not be rescinded, the court will
always
frown on an order obtained ex parte on incomplete information and
will set it aside even if relief could be obtained on
a subsequent
application by the same applicant. A litigant who approaches a court
ex parte is not entitled to omit any reference
to a fact or attitude
of his opponent which is relevant to the point in issue merely
because he is not prepared to accept the correctness
thereof.
[75]
The above-mentioned principle was aptly stated in
Recycling
and Economic Development Initiative of South Africa v Minister of
Environmental Affairs
as
follows:
[45]
‘
[45]
…In
NDPP vs Basson
this court said:
“
Where an order is
sought
ex
parte
it is well established that the utmost good faith must be observed.
All material facts must be disclosed which might influence
a court in
coming to its decision, and the withholding or suppression of
material facts, by itself, entitles a court to set aside
an order,
even if the non-disclosure or suppression was not wilful or
mala
fide
(
Schlesinger
v Schlesinger
1979
(4) SA 342
(W)
at 348E-349B).”
[46]
The duty of the utmost good faith, and in particular the duty of full
and fair disclosure, is imposed because orders granted
without notice
to affected parties are a departure from a fundamental principle of
the administration of justice, namely,
audi alteram partem
.
The law sometimes allows a departure from this principle in the
interests of justice but in those exceptional circumstances the
ex
parte applicant assumes a heavy responsibility to neutralise the
prejudice the affected party suffers by his or her absence.
[47]
The applicant must thus be scrupulously fair in presenting her own
case. She must also speak for the absent party by disclosing
all
relevant facts she knows or reasonably expects the absent party would
want placed before the court. The applicant must disclose
and deal
fairly with any defences of which she is aware or which she may
reasonably anticipate. She must disclose all relevant
adverse
material that the absent respondent might have put up in opposition
to the order. She must also
exercise due care and make such
enquiries and conduct such investigations as are reasonable in the
circumstances before seeking
ex parte relief
. She may not refrain
from disclosing matter asserted by the absent party because she
believes it to be untrue. And even where the
ex parte applicant has
endeavoured in good faith to discharge her duty,
she will be held
to have fallen short if the court finds that matter she regarded as
irrelevant was sufficiently material to require
disclosure
. The
test is objective.
[48]
As Waller J said in
Arab Business Consortium
, points in favour
of the absent party should not only be drawn to the judge’s
attention, but must be done clearly: “There
should be no
thought in the mind of those preparing affidavits that provided that
somewhere in the exhibits or in the affidavit
a point of materiality
can be discerned, that is good enough.”
[49]
The ex parte litigant should not be guided by any notion of doing
the bare minimum.
She should not make disclosure in a way
calculated to deflect the judge’s attention from the force and
substance of the absent
respondent’s known or likely stance on
the matters at issue. Generally, this will require disclosure in the
body of the affidavit.
The judge who hears an ex parte application,
particularly if urgent and voluminous, is rarely able to study the
papers at length
and cannot be expected to trawl through annexures in
order to find material favouring the absent party.
[50]
In regard to the court’s discretion as to whether to set aside
an ex parte order because of non-disclosure, Le Roux J
said in
Schlesinger v Schlesinger
:
“
(U)nless there are
very cogent practical reasons why an order should not be rescinded,
the Court will always frown on an order obtained
ex parte
on
incomplete information and will set it aside even if relief could be
obtained on a subsequent application by the same applicant.”
[51]
This is consistent with the approach in English law, that if material
non-disclosure is established a court will be “astute
to ensure
that a plaintiff who obtains [an ex parte order] without full
disclosure, is deprived of any advantage he may have derived
by that
breach of duty”.
[52]
As to the factors that are relevant in the court’s exercise of
its discretion whether or not to set aside an ex parte
order on
grounds of non-disclosure, in
NDPP v Phillips
this court said
that regard must be had to the extent of the non-disclosure, the
question whether the judge hearing the ex parte
application might
have been influenced by proper disclosure, the reasons for
non-disclosure and the consequences of setting the
provisional order
aside.’ (My emphasis.) (Footnotes omitted.)
[76]
From the new facts which have since emerged in this application, it
appears to me that the first
respondent and/or its directors or
attorneys failed to “exercise due care and make such enquiries
and conduct such investigations
as are reasonable in the
circumstances before seeking ex parte relief” relating to the
final order which fundamentally violated
ownership and/or possessory
rights of the applicants. It seems they were guided by a “notion
of doing the bare minimum”.
[77]
What demonstrates that fact is the ease with which Strauss was able
to trace the owners of the
farms apparently doing her own
investigations without a tracing urgent. The affidavits used to
obtain the interim and final relief
do not spell out to what great
extent the first respondent together with its directors and or legal
advisers went to in order to
trace the owners of the farms beyond
merely assuming, from the title deed, that they are unlikely to be
still alive, before seeking
relief from the court.
[78]
Furthermore, the first respondent or its deponent attached the final
liquidation and distribution
account of the deceased HCM Geldenhuys
to its founding affidavit in the ex parte application. In this
document it is clearly indicated
that the heirs to Geldenhuys’s
undivided share in the farms are the second applicant and her sister,
Lizelle Geldenhuys.
A simple enquiry with the Master of the High
Court would, I believe, have provided the first respondent with the
details of the
executrix of the estate, and the details of the heirs.
From the fact that the first respondent attached the liquidation and
distribution
account of Geldenhuys leads one to the inescapable
conclusion that the first respondent and its attorneys had access to
the information
held by the Master, which included details of the
second applicant.
[79]
The statement by the deponent that “there is no way of tracing
any of the owners as per
the title deed, nor is there any way of
establishing whether or not there are any next of kin” is
misleading and untrue.
This statement coming from the first
respondent, who is from the area, and whose properties are adjacent
to the farms. The extent
of the first respondent’s
investigations woefully fell short of what was expected to be
reasonable in the circumstances and
an inference is inescapable that
this was done deliberately with intent to propose and achieve
transfer of ownership of the farms
to itself.
[80]
Even when the first respondent approached court, it appears that
evidence which was either half-truth
or false was adduced. The
following facts give credence to that conclusion:
(a)
In the notice of motion reference is only made to the farm Gen
Ashton. All averments in
the founding affidavit related to this
property and relief sought in the notice of motion only related to
this property. There
was no reference made to Twyfelhoek or Moeders
Rus farms anywhere. None of the averments found in the founding
affidavit related
to these other two properties; and none of the
relief sought related to these properties. This was done
notwithstanding the fact
that, at the time of deposing to the
founding affidavit, the first respondent already knew (from the copy
of the deed of transfer
attached) that the farm which formed the
subject matter of the relief sought in the notice of motion, was part
of three farms held
under the same title deed number, namely Glen
Ashton, Twyfelhoek and Moeders Rus. Even when transfer of the
property to the first
respondent was proposed in the supplementary
affidavits, no mention is made of the other two farms.
(b)
The relief sought in the notice of motion only related to creating
and maintaining firebreaks
in terms of the National Veld and Forest
Act on the farm Glen Ashton. No mention was made, in the founding
affidavit, of the first
respondent’s intention to acquire this
property, let alone the other two farms for that matter. As a result,
on 6 June 2019,
the court order only related to Glen Ashton,
authorising access to this farm in order to create and or maintain
firebreaks thereon.
Even the advertisements, placed by the first
respondent in the newspapers relating to that order, only made
mention of Glen Ashton.
However, without an amendment to the notice
of motion to establish a cause of action or any legal foundation, the
first respondent,
on a sudden turn of events, simply claims for
relief aimed at the acquisition of Glen Ashton farm.
(c)
When seeking that order, on 4 December 2019, the first respondent,
well aware of the
fact that there were three farms with same title
deed number, and that the advertisement in the local newspaper only
made reference
to the farm Glen Ashton fails to alert the court to
the fact that the original notice of motion and affidavits filed of
record
only dealt with Glen Ashton farm and not the other two farms.
And so do the notices published in terms of the interim orders. When
the final order of 26 February 2020 is issued, suddenly no reference
is made to the farm Glen Ashton but only to the title deed
number,
which included all three farms. Was this subtle change intended to
hoodwink and bamboozle the court to grant this extraordinary
relief?
It seems so, if one considers further pertinent facts below.
(d)
Of the three farms, only one, namely Glen Ashton, shares a common
border with the first
respondent’s property. That fact was not
disclosed in any of the affidavits filed on record. All that was
disclosed, was
the fact that the subject-matter, namely Glen Ashton
was completely landlocked, which is true, and therefore has no
commercial
value, housing or industrial value, which is false as some
value was obtained by the sworn valuator for some purchase
consideration.
[46]
I return to
the value aspect later on. The correct position seems to be the
following:
(i)
As alluded to above, only Glen Ashton shares a common border with the
first
respondent’s property. It is completely landlocked and is
surrounded by farms belonging to the first respondent.
[47]
(ii)
Effective firebreaks and back burns around the perimeter of the first
respondent’s
farms completely insulates Glen Ashton from
external fire threats. Similarly, effective firebreaks and back burns
around the perimeter
of the first respondent’s farms
neutralises any threat of a fire emanating from Glen Ashton, from
spreading to any of the
first respondent’s farms.
(iii)
The first applicant’s son belongs to the local Fire Protection
Association in Newcastle,
and he, together with her two nephews, made
firebreaks and back burns on all three farms since 2012. Before that,
her late brother
did the same. It is only since 2020 when the first
respondent allegedly prevented the first applicant’s son and
nephews from
accessing Glen Ashton via Vulintaba that they did not
make firebreaks and back burns on that farm, but not even this, it
would
appear, ever caused any realistic threat to the first
respondent’s properties.
(iv)
It is denied, as false, that there are no structures on the farms and
that there are no
persons exercising any occupation or control over
the farms. The first applicant avers to the fact that her son and
great-nephews
were utilising the farms for grazing purposes, and that
there were several farm labourers who lived on the farm, although her
son
and great-nephews did not live on it.
(v)
Twyfelhoek is completely landlocked and is surrounded by the
Remainder of the Farm
Twyfelhoek 3339; the Farm Toegeken 9739; and
the Farm the Drop 4603.
[48]
All these farms are said to belong to the company Oubas Bosbou
Landgoed (Pty) Ltd which is neither owned nor associated with the
first respondent. Twyfelhoek does not share a common border with the
first respondent’s property and in so far as the farm
might
have posed any fire risk, the risk would not have been to the
property of the first respondent, but the properties of Oubas
Bosbou
Landgoed.
(vi)
Moeders Rus is also completely landlocked and is surrounded by
Portions 2,3 and 4 of the
Farm Vergelegen A9770 (owned by a certain
Mr CJ Botha, Mr Giep Van Heerden and Mr Dries Boshoff respectively or
companies associated
or controlled by them), the Farm Toegeken 9739
and The Drop 4603 (owned by Oubas Bosbou Landgoed); and the Farm
Geduld 255 (owned
by the MJ Glutz Trust). Moeders Rus does not share
a common border with the first respondent’s property; and in as
far as
the farm might have posed any fire risk, the risk would not
have been to the property of the first respondent but the
aforementioned
owners. It is averred that the old farmhouse in which
the first applicant grew up is still on Moeders Rus and until
recently, she
states, her son and nephews would occupy the house when
they visited the farm to tend to their livestock. It appears that
after
this application was launched, the first respondent’s
employees broke down the door to the house and forced the first
applicant’s
son to remove all his belongings.
(vii)
It is alleged that, to this day, Twyfelhoek has infrastructure which
includes a shed, rondavels,
and an ablution facility. The applicants’
family could congregate there at least once a year for a family
reunion and the
rondavels and ablution facilities were used by the
family during these congregations. The last time the family
congregated there
was in 2019 before the onset of the Covid 19
pandemic.
(e)
There were cattle grazing on the farms which would have been a clear
indication that the
farms were being utilised. The first respondent
or its deponent to the affidavits filed on record omitted to mention
this fact
in its evidence, instead opted to claim that there was no
life (of people and animals) on the farms. I find it strange that
since
these proceedings have been launched there seems to be life
again on the farms.
[49]
(f)
Moeders Rus and Twyfelhoek both have access to provincial or
municipal roads via servitudes
which tends to show that the first
respondent was not telling the whole truth in its affidavits, when it
stated that the farm (which
to its knowledge were actually three
farms) had no road access. Although it is true Glen Ashton needed to
be accessed via Vulintaba,
Twyfelhoek is accessed via a servitude
that runs over the Farm Toegeken 9739; while Moeders Rus is accessed
via a servitude that
runs over Farm Geduld 255. It is to be noted
that Vulintaba, of which the deponent to the affidavits is one of the
directors, issued
an access pass to Paul Geldenhuys to traverse the
Estate in order to access the farm (ostensibly Glen Ashton) in June
2019, a month
after the ex parte application was launched and eight
months before the first respondent obtained the final order. The
first respondent
owned Vulintaba. I find it strange that despite this
fact of a neglectful neighbour who has suddenly showed up, which I
believe
should have been within the common knowledge of its
employees, the first respondent still went ahead and sought final
relief to
take ownership of the farms. It appears to me that, at the
time the final order was granted, the first respondent knew or should
have known that the facts upon which the relief sought was premised
were not true.
(g)
The first respondent held out to the court that the farm (which to
its knowledge were actually
three farms) was of little or no
commercial value. The valuation certificate attached to its
supplementary affidavit in the ex
parte application indicated the
combined value of the three farms is R1 254 687.03. Having regard to
the massive discrepancy between
the true value of the farms and the
value expressed in the valuation certificate, the first respondent’s
valuation is grossly
inaccurate, and the information contained
therein was either manipulated or deliberately misstated.
(h)
The Newcastle Municipality undertook a General Valuation Roll (GV
2019) which was implemented
with effect from 1 July 2019. The GV 2019
Roll property values remain valid for the period 1 July 2019 to June
2024. According
to the Valuation Roll the municipal values of three
farms are as follows: -
(i)
Glen Ashton – R1 340 000;
(ii)
Moeders Rus – R4 478 000; and
(iii)
Twyfelhoef – R 1 272 000
Therefore, the combined
municipal valuation of the farms is R7 090 000. Clearly, the farms
were acquired at a bargain even by the
municipal standards.
(i)
Because a municipal evaluation is generally lower than the actual
commercial
value of a property, the first applicant caused a
commercial valuation of the farms to be done using a web-based
application called
‘Lightstone’ which, it is argued
provides credible and accurate information, valuations and market
intelligence on
properties in South Africa. The platform is said to
be completely impartial and unbiased. According to Lightstone, the
comparable
average sales prices of the farms are as follows:
(i)
Glen Ashton – R6 785 999.95;
(ii)
Twyfelhoek – R6 360 893.10; and
(iii)
Moeders Rus – R6 875 249.95
So, the realistic
commercial value of the farms is therefore R20 022 143.
Therefore, the first respondent acquired the farms
for R18 767 456
below its commercial value. By any standard, this occasioned a big
loss to the true owners and/or beneficiaries.
(b)
No cause of action and legal incompetence of
a co
urt
[81]
The applicants submit that the application upon which the final order
was premised, did not disclose
a cause of action and that it was
legally incompetent for a court to have made such order. It is
argued, that the court lacked
jurisdiction to authorise the transfer
of the farms to the first respondent as there is no provision in any
law empowering a court
to do so without express statutory
provision.
[50]
[82]
It would seem as if it was the first respondent’s case, in the
ex parte application, that
the farms in question were abandoned
(
res
derelicta), and as a result became res nullius. However, our courts
have taken a strict approach in determining whether valuable
property
has been abandoned. Apathy on the part of the owner of valuable
property is thus insufficient to establish an intention
to abandon.
Given the value attached to immovable property, a court will not find
that abandonment has occurred absent an express
intention to do so on
the part of the owner.
[51]
[83]
Available evidence tells us now that the farms were not res
derelicta. But even if it was, land
which is abandoned by its owner
would revert to the State and does not become res nullius
.
[52]
[84]
The position regarding unclaimed inheritances is also that such
property is rendered bona vacantia,
although this position is now
regulated by legislation.
[53]
[85]
The court order was akin to expropriation of land without
compensation and without any statutory
authority empowering the court
to do so. Such expropriation, even by an authority statutorily
empowered to do so, is expressly
prohibited by s 25 of the
Constitution. The court order is therefore in direct violation of the
rights of the owners of the farms
and their descendants.
[86]
Even if it is accepted (from some source I could not establish) that
the court had statutory
authority to authorise the transfer of the
property against the payment into the Guardian’s Fund, as some
compensation, the
procedures set out in the Expropriation Act should
have been followed as a guideline. Compensation had to be calculated
in a manner
consistent with s 25(3) of the Constitution.
[54]
[87]
The following procedures are prescribed for expropriation:
(a)
the decision to expropriate is administrative and the rules and
principles prescribed for
the taking of administrative decisions
should be adhered to;
(b)
notice of expropriation must be served on the owner;
(c)
procedure for claiming, negotiating etc. of payment of compensation
is set out in
ss 7(2)(c) and (d); and 9-12 of the Expropriation Act;
and
(d)
if there is no agreement on compensation, it has to be decided by the
Compensation Court,
Land Claims Court or High Court.
Clearly,
none of these procedures were followed before the court granted an
order authorising the transfer of the properties to
the first
respondent.
[88]
If there is no agreement, a court must determine what is just and
equitable, taking into account
public interest and those affected.
The following factors must be taken into account;
(a)
current property use;
(b)
history of acquisition and use of property;
(c)
market value of the property; and
(d)
extent of State direct investment and subsidy in acquiring the
property.
Clearly,
none of these factors were considered when the court determined the
amount of compensation to be paid for the properties.
In addition, a
solatium of ten percent is normally paid in addition to the actual
loss incurred to the owner by the expropriation.
(c)
Rescission at common law (ex abundanti cautela)
[89]
As alluded to earlier, at common law the court is entitled to rescind
a judgment obtain in default
of appearance provided sufficient cause
is shown. This includes a reasonable and acceptable explanation for
the default and that
on the merits the party has a bona defence.
[55]
[90]
Taken from the history of the matter, the applicants have a
reasonable explanation for the default.
As found earlier, the first
respondent merely conducted a minimal and cosmetic investigation to
trace the owners of the farms and
the advertisement notices were
insufficient and probably never reached the applicants, as they
claimed. Their default was not wilful.
[91]
I am persuaded (by the new facts, which have emerged since the
order), that the application is
made bona fide and that the
applicants have a genuine defence or claim which prima facia carries
some prospect of success. The
defence(s) raised by the first
respondent to the applicants claim of ownership of the farms have no
merit and no basis in law.
Theirs (applicants) is a good claim.
[56]
Conclusion
[92]
From the aforegoing, I am satisfied that the first respondent duly
assisted by its attorneys
committed a comedy of errors in seeking the
default judgment. Most errors, if not all, seem to have been geared
to surreptitiously
obtain transfer of the farms into its name, taking
advantage of and/or abusing the regular court system to achieve its
aim. Otherwise,
nothing else explains the hostile processes or
procedures adopted to seek the final order of transfer beyond the
interim relief
granted.
[93]
The order was erroneously sought or erroneously granted in the
absence of the applicants who
are affected by it. That is so for all
the reasons enumerated earlier, including that it was not legally
competent for the court
to have made such an order and in the manner
that it was done. I am satisfied that the final order granted cannot
be sustained
and should be rescinded, with the status quo ante
revived.
Costs
[94]
The applicants seek for a cost order de bonis propriis against the
displeasing conduct of the
first respondents’ attorneys in
pursuance of the course which led to the final and transfer order of
the farms to the first
respondent. It is my view that there is a
legitimate case to be made out for such costs since attorneys should
not be allowed to
sneak applications through by deliberately failing
to make a full and frank disclosure of all relevant facts.
[95]
In
Khan
v Mzovuyo Investments (Pty) Ltd
[57]
an order to pay wasted costs de bonis propriis against the
plaintiff’s attorney was granted where his conduct was
unreasonable
and negligent, and his handling of the case was slack
and apparently characterised by a lack of concern.
[58]
[96]
In
South
African Liquor Traders’ Association and Others v Chairperson,
Gauteng Liquor Board, and Others
[59]
the Constitutional Court stated as follows:
‘
[54]
An order of costs
de bonis propriis
is made against attorneys
where a court is satisfied that there has been negligence in a
serious degree which warrants an order
of costs being made as a mark
of the court’s displeasure. An attorney is an officer of the
court and owes a court an appropriate
level of professionalism and
courtesy. Filing correspondence from the Constitutional Court
without first reading it constitutes
negligence of a severe degree.
Nothing more need be added to the sorry tale already related to
establish that this is an appropriate
case for an order of costs
de
bonis propriis
on the scale as between attorney and client…’
(Footnote omitted.)
[97]
The first respondent’s attorneys launched an application, which
was vacuous in obvious
respects, and in which, to the knowledge of
the attorney, the deponent deliberately omitted to disclose material
facts. The attorney
must have known that the only way in which the
first respondent could have succeeded with the application (for the
final relief)
was to prosecute it in a stealthy and opaque manner.
[98]
The attorney would have been aware of the fact that there was no
evidence to establish the necessary
factual basis for the transfer of
the farms to the first respondent. Should the attorney and his client
have made a frank disclosure
of all relevant facts, the application
would have had no real prospect of success. This alone is a
sufficient ground for an award
of costs de bonis propriis.
[99]
In this instance, it appears to me there is more than mere
negligence. There was a deliberate
and conscious attempt, if not a
reckless one, to conceal information and mislead the court. This
conduct is close, if not equivalent
to acquiring someone’s
property through fraudulent means, which cannot, and should not be
countenanced.
Order
[100]
Consequently, the following order shall issue:
1.
The applicants be joined in the ex parte application of Tropical
Winter Trading
(Pty) Ltd (Case Number: 3635/19P) as first and second
respondents respectively.
2.
The order granted by Seegobin J, on 26 February 2020, in the ex parte
application
of Tropical Winter Trading (Pty) Ltd (Case Number.
3635/19P), is rescinded and set aside.
3.
The registration and transfer of the following properties
(collectively referred to
as (“the farms”) to the first
respondent is set aside:
3.1
the Remainder of the Farm Glen Ashton, No. 8589, Registration
Division HS, Province of KwaZulu-Natal,
held under title deed number:
T 23804/2020, in extent 191, 6466 (one hundred and ninety – one
comma six four six six) hectares,
first registered by Crown Grant
Number G8589/1914 and previously held by Deed of Transfer Number:
T1752/1962;
3.2
Portion 6 (of 3) of the Farm Twyfelhoek No. 3339, Registration
Division HS, Province of KwaZulu –
Natal, held under title deed
number: T23804/2020, in extent 192, 6811 (one hundred and ninety –
two comma six eight one one)
hectares, first transferred by Deed of
Partition Transfer Number: T2420/1927, and previously held by Deed of
Transfer Number: T1752/1962;
and
3.3
The Farm Moeders Rus No. 11657, Registration Division HS, Province of
KwaZulu – Natal,
held under title deed number: T23804/2020, in
extent 487,7306 (four hundred and eighty-seven comma seven three zero
six) hectares,
first registered by Crown Grant Number G11657/1930 and
previously held by Deed of Transfer Number: T1752/1962.
4.
The first respondent be ordered to take all steps necessary, within 1
(one) month
of service of this order upon it, to effect transfer of
the farms to the erstwhile owners, or their successors in title.
5.
In the event of the first respondent failing, refusing, or neglecting
to comply
with prayer 4:
5.1
that the applicant(s) be authorised to instruct a conveyancer to
prepare the necessary documents to
effect transfer of the farms to
the erstwhile owners, or their successors in title;
5.2
that the first respondent be ordered to sign the documents referred
to in prayer 5.1, within five (5)
days of demand; and
5.3
that the Sheriff be authorised to take all steps contemplated in
prayer 5.2, in and on the
first respondent’s stead and behalf,
should the first respondent fail to do so.
6.
The cost of the application, and the cost associated with giving
effect to the
relief prayed for in the preceding paragraphs, be paid
by the first respondent, jointly and severally with its attorneys,
Messrs.
Kruger Attorneys and Conveyancers of 32 Mouton Street,
Horizon, Roodepoort, the one paying, the other to be absolved, on the
scale
as between attorney and client.
7.
The Registrar of this Court forward a copy of this judgment to the
Legal Practice
Council to investigate the conduct of the attorneys
referred to in paragraph 6.
ZP Nkosi J
CASE
INFORMATION
DATE OF HEARING:
28 OCTOBER 2022
DATE JUDGMENT
HANDED DOWN:
22 MAY 2023
COUNSEL
FOR THE 1
ST
AND 2
ND APPLICANTS:
ADV. ADRIAAN
VORSTER
INSTRUCTED BY
(BOSHOFF
INCORPORATED
Tel: 012 424
7500
Ref: N
Nortje/mm2843
Email:
nnortje@boshoffinc.coza
c/o Shepstone &
Wyle Attorneys)
Tel: 033 355
1780
Email:
jmanuel@wyllie.co.za
Ref:
JTM/mm/BOSH32336.12
COUNSEL FOR THE
1
ST
RESPONDENT:
ADV. JOHAN
PRINSLOO
INSTRUCTED BY
(KRUGER ATTORNEY
AND CONVEYANCERS
Tel: 011 766
1428
Ref: TF
Kruger/as/C1035
c/o Grant
Swanepoel
Email:
odette@krugerattorney.co.za)
[1]
Annexure “SA03” to the founding affidavit.
[2]
Annexure “SA05”.
[3]
Annexure “SA06”.
[4]
Annexure “SA07”.
[5]
Annexure “SA08”.
[6]
Annexure “SA09”.
[7]
Attached to annexure “SA04” as “FA8”.
[8]
Annexure “SA10”.
[9]
Annexure “SA11”.
[10]
Annexure “SA12”.
[11]
Annexure “SA13”.
[12]
Annexure “SA14”.
[13]
Annexure” SA15”.
[14]
Annexure “FA8”.
[15]
Annexure “SA06”.
[16]
Annexure “SA07”.
[17]
Annexure “SA09”.
[18]
Annexure “FA9”.
[19]
Annexure “SA16”.
[20]
Mars
Incorporated v Candy World (Pty) Ltd
[1990] ZASCA 149
;
1991 (1) SA 567
(A) at 575.
[21]
Jacobs
en ‘n Ander v Waks
en
Andere
[1991] ZASCA 152
;
1992
(1) SA 521
(A) at 534.
[22]
DE Van Loggerenberg
&
E Bertelsmann
Erasmus
Superior Court Practice
(RS20,
2022) at D1-187.
[23]
Coetzee
v Comitis and Others
2001 (1) SA 1254
(C); and
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC) at 1082.
[24]
Tlouamma
and Others v Speaker of the
National
Assembly and Others
2016
(1) SA 534
(WCC) para 159.
[25]
See also
Transvaal
Agricultural Union v Minister of Agriculture and Land Affairs
and
Others
2005 (4) SA 212
(SCA) paras 64-66; and
Shapiro
v South African Recording Rights Association Ltd (Galeta
Intervening)
2008
(4) SA 145 (W).
[26]
Van der Keesel DG
Praelectiones
Iuris
Hodierni ad Hugonis Grotii Introductionem ad Iurisprudentiam
Hollandicam
(translated by Van Warmelo et al) Balkema 1961-1967 at D43 27 5.
[27]
See
Ohlsson’s
Cape Breweries v Hamburg
1908 TS 134
;
Gartrell
v Southern Life
Association
1909 TH 57
;
Estate
Hughes v Fouche
1930 TPP 41; and
Horwood
v Horwood
1936
(1) PH F74.
[28]
Booysen
and Others v Booysen and Others
2012
(2) SA 38
(GSJ).
[29]
De Wet
and Others v Western Bank Ltd
1977 (4) SA 770
(T) at 780.
[30]
Mutebwa
v Mutebwa
and
Another
2001 (2) SA 193
(TkH) para 12; and
Swart
v Absa Bank Ltd
2009 (5) SA 219 (C)).
[31]
Van
Rensburg v Van Rensburg en Andere
1963 (1) SA 505
(A) at 509D-510D;
Cole
v Government of the Union of South Africa
1910 AD 263
at 272-273;
Paddock
Motors (Pty) Ltd v Igesund
1976 (3) SA 16
(A) at 23D-24G; and
Alexkor
Ltd and
Another
v The Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC) para 43.
[32]
See
Bakoven
Ltd v G J Howes
(Pty)
Ltd
1992 (2) SA 466
(E) at 471E-F; and
Promedia
Drukkers & Uitgewers (Edms) Bpk v Kaimowitz and Others
1996 (4) SA 411
(C) at 417B.
[33]
Kgomo
and Another v Standard Bank of South Africa
and
Others
2016 (2) SA 184
(GP
)
.
[34]
See
Ex
Parte Naude
1964 (1) SA 763
(D) at 764.
[35]
Tshabalala
and Another v Peer
1979 (4) SA 27
(T) at 30D;
Bakoven
Ltd v G J Howes
(Pty)
Ltd
1992 (2) SA 466
(E) at 471G;
Naidoo
v Somai
and
Others
2011 (1) SA 219
(KZD) at 220F-G; and
Rossitter
and Others v Nedbank Ltd
(96/2014)
[2015] ZASCA 196
(1 December 2015) para 16.
[36]
Nyingwa
v Moolman NO
1993
(2) SA 508
(TK) at 510 D-G
;
Naidoo and Another v Matlala
NO and
Others
2012
(4) SA 143
(GNP) at 153C; and
Thomani
and Another v Seboka
NO and
Others
2017 (1) SA 51
(GP) at 58C-E.
[37]
De Wet
and Others v Western Bank Ltd
1979 (2) SA 1031
(A) at 1038D-E.
[38]
Athmaram
v Singh
1989 (3) SA 953
(D) at 956D and 956I.
[39]
Lodhi 2
Properties
Investments
CC v Bondev Developments (Pty) Ltd
2007
(6) SA 87
(SCA) at 93C-H; and
President
of the Republic of South Africa v Eisenberg and Associates
(Minister
of Home Affairs Intervening)
2005 (1) SA 247
(C) at 264D-H.
[40]
Erasmus
Superior
Court Practice
(RS20,
2022) at D1-562D.
[41]
Viljoen
v Federated Trust Ltd
1971 (1) SA 750
(O); and
Smit
v Van Tonder
1957 (1) SA 421 (T).
[42]
De Wet
and Others v Western Bank Ltd
1979 (2) SA 1031
(A) at 1042.
[43]
Chetty
v Law Society, Transvaal
1985 (2) SA 756
(A) at 761H-J.
[44]
Schlesinger
v Schlesinger
1979 (4) SA 342 (W).
[45]
Recycling
and Economic Development Initiative of South Africa v Minister of
Environmental Affairs
2019
(3) SA 251 (SCA).
[46]
Annexure “TFK1”.
[47]
Annexures “FA6” and “SA16”.
[48]
Annexure “FA6”.
[49]
Annexures “AA6” and “AA7” to the answering
affidavit.
[50]
SP &
C Catering
Investments
(Pty) Ltd v Body Corporate of Waterfront Mews and Others
2010 (4) SA 104
(SCA) paras 4 and 5.
[51]
See
Minister
Van Landbou v Sonnendecker
1979 (2) SA 944
(A) at 946A-947B;
Meintjes
NO v Coetzer
and
Others
2010 (5) SA 186 (SCA); and
Papas
NO v Motsere Trading CC
and
Others
(46011/2012) [2014] ZAGPJHC 144 (6 June 2014).
[52]
Wille’s
Principles
of
South African Law
9 ed (2007) at 492; DL Carey Miller
The
Acquisition and Protection of Ownership
(1986)
at 8-9.
[53]
See
Estate
Baker and Others v Estate Baker and Others
(1908) 25 SC 234
;
Bielovich
and Others v The
Master
and Another
1992 (4) SA 736
(N); and ss 35(13); 43(6); and
s 92
of
the
Administration of Estates Act 66 of 1965
.
[54]
See Harms
Amler’s
Precedents
of
Pleadings
,
9 ed (2018) at 197-200.
[55]
De Wet
and Others v Western Bank Ltd
1979 (2) SA 1031
(A) at 1042; and
Chetty
v Law Society, Transvaal
1985 (2) SA 756
(A) at 764.
[56]
Promedia
Drukkers & Uitgewers (Edms) Bpk v Kaimowitz and Others
1996 (4) SA 411 (C).
[57]
Khan v
Mzovuyo Investments (Pty) Ltd
1991 (3) SA 47
(TK) at 48G-I.
[58]
See
Darries
v Sheriff, Magistrate’s Court Wynberg, and Another
1998
(3) SA 34
(SCA).
[59]
South
African Liquor Traders’ Association and Others v Chairperson,
Gauteng Liquor Board, and Others
2009 (1) SA 565
(CC).