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[2023] ZAECMKHC 40
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Van Der Merwe and Others v Nel and Others (663/2023) [2023] ZAECMKHC 40 (22 March 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 663/2023
In
the matter between:
WERNER
VAN DER MERWE
First Applicant
ELEANORE
VAN DER MERWE
Second Applicant
DOROTHEA
ANNA VAN DER MERWE
Third Applicant
JACO
VAN DER
MERWE
Fourth Applicant
ANDREA
GREYLING
Fifth Applicant
and
ILZE
DALEEN NEL,
NOMINE
OFFICIO
First Respondent
MAGDA
CHRISTINE
PELSER
Second Respondent
ANITA
JACOLINE
GREEF
Third Respondent
VIVIAN
STEPHEN VAN DER MERWE
Fourth Respondent
THE
MASTER OF THE HIGH COURT, MAKHANDA
Fifth Respondent
ANDRIES
KEUN
Sixth Respondent
THE
REGISTRAR OF DEEDS, KIMBERLY
Seventh Respondent
JUDGMENT
LAING
J
[1]
This is an urgent application for,
inter alia
, a rule
nisi
,
interdicting the first respondent from taking further steps to
transfer three farms in the Northern Cape to any prospective
purchaser.
The applicant required the first respondent to list the
farms with estate agents, advertise the sale thereof by public
auction,
and indicate that wind turbines were being constructed on
the land, which promised substantial passive income.
Applicants’
case
[2]
The late Mrs Vivien van der Merwe was the owner of farm no. 1[...]
and
remainder of farm no. 1[...] (‘the W[...] farms’), as
well farm no. 1[...] (‘L[...]’), in the district of
Hanover. She passed away on 30 June 2019.
[3]
Shortly afterwards, the first respondent, in her capacity as
executrix
of the estate, received written offers from the sixth
respondent to purchase the land. The parties concluded deeds of sale,
stipulating
a purchase price of R 10,700,000 for the W[...] farms,
and R 9,300,000 for L[...]. The sales were, however, subject to the
consent
of the fifth respondent and the heirs.
[4]
In the meanwhile, the distribution of the estate had become
problematic.
The applicants had instituted action proceedings to
challenge the validity of Mrs van der Merwe’s final will,
alleging that
she had been unduly influenced to change her will while
suffering from Alzheimer’s disease. The proceedings culminated
in
a settlement agreement which, say the applicants, amounted to a
redistribution. They allege that they became entitled to inherit
a
portion of the estate, together with the second, third, and fourth
respondents. The settlement agreement was made an order of
court on
28 November 2022.
[5]
The applicants argue that the true heirs to the estate only became
apparent
after the conclusion of the settlement agreement. They have
not provided their joint consent to the sale of the land.
[6]
Since the conclusion of the deeds of sale, significant renewable
energy
contracts have been allocated to the W[...] farms and L[...].
The construction of wind turbines is imminent, which would
significantly
increase the value of the land. The applicants refer to
an informal valuation, prepared by a valuer and appraiser, Mr André
Crouse, that estimated that the W[...] farms would be worth R
19,039,700 and L[...] would be worth R 13,904,658 if the renewable
energy project was properly considered. The market price for the land
was significantly higher than the amounts contemplated in
the deeds
of sale concluded with the sixth respondent.
[7]
Immediately after the conclusion of the settlement agreement, the
applicants’
attorney, Mr André van der Lingen, wrote to
the first respondent on 29 November 2022. He pointed out that it was
in everyone’s
interest that the land be sold for the best
possible price and asked for details of the marketing plan
(especially in light of
the renewable energy project), how the land
would be sold, and what terms would apply. The first respondent did
not respond. Mr
van der Lingen assumed that she would revert in the
new year.
[8]
On 3 February 2023, the first respondent’s personal assistant,
Ms
Carina Jordaan, informed various parties about the administration
of the estate and the marketing of the land. She indicated that
L[...] had been sold to the sixth respondent with the consent of the
fifth respondent and the heirs for R 9,300,000. The W[...]
farms had
been sold to the sixth respondent with the consent of the heirs, too,
for R 10,700,000; admittedly the fifth respondent’s
consent
remained outstanding. Further offers had been received for the W[...]
farms, pending receipt of the outstanding consent.
These had prompted
the sixth respondent to increase his original offer to R 13,000,000.
Ms Jordaan stated the first respondent’s
intention to proceed
with the sale in terms of the sixth respondent’s offer but
requested comment from the various parties
to whom her correspondence
had been addressed.
[9]
Consequently, Mr van der Lingen wrote to the first respondent on 6
February
2023. He expressed the applicants’ concern about the
lack of a transparent process in obtaining the best possible market
price for the land and referred to his earlier unanswered request for
details of the first respondent’s marketing plan. Mr
van der
Lingen conveyed, too, his opinion that the consent of the fifth
respondent would need to be obtained afresh, together with
the
consent of all the parties to the settlement agreement by reason of
their interest in the sale. Of immediate importance to
the present
matter was Mr van der Lingen’s threat to institute legal
proceedings if the first respondent did not provide
an undertaking to
halt the process until the applicants’ concerns had been
addressed. The relevant portion of his correspondence
reads as
follows:
‘
I urge your
undertaking not to proceed with the transfer or acceptance of any
purchase agreements or registration of transfer before
the questions
highlighted above have been addressed. I require this undertaking
within 48 hours failing which my clients will consider
the bringing
of the necessary interdict application to stop you, pending the
outcome of a request that the properties are correctly
and
transparently marketed.’
[1]
[10]
The first respondent provided no response, much to the irritation and
puzzlement of the
applicants.
[11]
Dealing with the question of urgency, the applicants argue that the
first respondent has
simply ignored Mr van der Lingen’s
correspondence. They assert that she has elected not to divulge the
details of any marketing
plan and has decided merely to proceed with
the sale of the significantly undervalued land.
Respondents’
case
[12]
The first
respondent refers, in her answering affidavit, to Mrs van der Merwe’s
last will, to which she attested on 9 May
2015. In terms thereof, she
nominated the first respondent as executrix and directed that the
assets of the estate be sold and
that the proceeds be distributed
equally amongst her four remaining children, viz. Mr Chris van der
Merwe, and the second, third,
and fourth respondents.
[2]
The last will of Mrs van der Merwe, alleges the first respondent, was
accepted by the fifth respondent. It has not been set aside.
[13]
Subsequent to Mrs van der Merwe’s passing, the first and sixth
respondents entered
into negotiations about the possible purchase of
the land. On 15 August 2019, however, Mr van der Lingen challenged
the validity
of the last will and requested an undertaking that the
sale of the land would not proceed, failing which the applicants
would apply
for an interdict. The deeds of sale were signed on the
following day, 16 August 2019. The first respondent subsequently
wrote to
Mr van der Lingen on 27 August 2019, defending the
authenticity of Mrs van der Merwe’s last will and indicating
that the
deeds of sale had already been signed. She undertook,
however, to proceed no further until 13 September 2019, pending the
applicants’
institution of legal proceedings. These did not
materialise. Consequently, the first respondent obtained the
requisite consent
from the heirs and sought the approval of the fifth
respondent. The latter endorsed the sale of L[...] but stipulated
further requirements
before the sale of the W[...] farms could be
approved.
[14]
On or about 18 November 2019, the applicants caused summons to be
issued in relation to
the validity of Mrs van der Merwe’s last
will. During the proceedings, on 13 May 2021, the first respondent
furnished Mr
van der Lingen, pursuant to his request, with a complete
copy of the files pertaining to the administration of the estate. It
is
common cause that the proceedings culminated in a settlement
agreement that was made an order of court on 28 November 2022.
[15]
The settlement agreement, asserts the first respondent, does not
amount to a redistribution
agreement. The applicants cannot claim to
be heirs of the estate. In any event, the sale of the W[...] farms
cannot proceed without
the fifth respondent’s consent; the sale
of L[...] has already been concluded. This was the position at the
time of Ms Jordaan’s
communication to various parties on 3
February 2023 and it remains the position. The applicants, contends
the first respondent,
have been aware of this.
In
reply
[16]
The applicants contend in reply that the first respondent never went
so far as to say,
on 27 August 2019, that the deeds of sale had been
signed. If she had, then the applicants would have launched interdict
proceedings
at that stage. Moreover, assert the applicants, the
prospect of a significant increase in the value of the land had
directly informed
the terms of the settlement agreement. The first
respondent has already granted an option to the renewable energy
project developer
to register a long-term lease or a servitude over
the land.
[17]
Furthermore, the applicants point out that the first respondent
simply failed to apprise
the fifth respondent of the applicants’
challenge to the validity of the late Mrs van der Merwe’s will.
She was supposed
to have done so at the time that she had sought the
fifth respondent’s consent to the sale of the land. At the
least, she
ought to have added a suspensive condition to the deeds of
sale to accommodate the challenge.
Issues
to be decided
[18]
The applicants seek, chiefly, a rule
nisi
against the
respondents. This will entail a determination of whether they have
met the usual requirements for interim relief, the
foremost of which
being the existence or otherwise of a
prima facie
right.
[19]
The most immediate issue for consideration, however, is whether the
applicants have established
a basis for urgency or whether the matter
ought to be removed from the roll, as urged by the respondents. This
aspect will be considered
below.
Urgency
[20]
The
applicants placed a certificate of urgency before this court (in
chambers) on Tuesday, 28 February 2023. This was done in accordance
with the provisions of rule 12(d) of the practice directions for the
Eastern Cape.
[3]
In terms
thereof, the applicants sought to enrol the matter for hearing on
Friday, 3 March 2023, which was not a day normally reserved
for the
hearing of motion court matters. They indicated that they would seek
a rule
nisi
and set out a timeframe for the filing of papers. To that effect,
they proposed that the respondents be required to give notice
of
their intention to oppose by Wednesday, 8 March 2023; answering
affidavits be filed by Wednesday, 15 March 2023; and replying
affidavits be filed by Wednesday, 22 March 2023. The applicants
further proposed that the return date for the rule
nisi
be stipulated as Tuesday, 28 March 2023.
Rule
2(d) directions
[21]
The court issued directions for the further conduct of the matter.
The applicants were
directed to ensure service of the application by
13h00, Wednesday, 1 March 2023; the respondents were required to
deliver answering
affidavits, if any, by close of business, Thursday,
2 March 2023; and permission was given for the matter to be enrolled
for hearing
at 09h30 on Friday, 3 March 2023. Importantly, the court
expressly indicated that no finding was made on the alleged urgency.
[22]
In a recent
decision handed down in this division,
Voigt
NO v EGH IP (Pty) Ltd
,
[4]
Lowe J pointed out that a court’s directions did not finally
dispose of the issue of urgency. This had to be determined in
due
course after a court had heard all relevant facts and circumstances,
including those put forward by the respondent.
[5]
[23]
The
directions issued by a court under the provisions of rule 12(d) of
the practice directions are intended to serve the objectives
of
proper case flow management. They are designed to ensure,
inter
alia
,
that there is no unnecessary delay and that cases can be finalised as
expeditiously as possible. In
Bobotyana
v Dyantyi
,
[6]
Mbenenge JP held that there was no reason why case flow management
should not apply to motion proceedings.
[7]
In issuing directions within such a context, a court will rely purely
on the certificate of urgency to make a
prima
facie
determination as to whether the application appears to be
sufficiently urgent to be heard outside a normal motion court day.
This
requires a great deal of trust to be placed in the submissions
made by applicant’s counsel, without the benefit of insight
into the respondent’s position. Consequently, there is a need
for a court to strike a balance between ensuring effective
case flow
management while not permitting the abuse of the urgency provisions
in either the Uniform Rules of Court (‘URC’)
or the
practice directions, to the prejudice of the respondent.
[24]
As it so happened, the first respondent in the present matter
delivered an answering affidavit
that ran to some 39 pages (excluding
annexures), notwithstanding the very limited time available. The
applicants, in turn, delivered
a replying affidavit of 29 pages
(excluding annexures). On the day of the hearing, Friday, 3 March
2023, the court invited argument
in relation to both urgency and
merits before reserving judgment.
[25]
It is necessary at this point to emphasise that, despite having heard
submissions in relation
to the merits, the court is still required to
decide whether the matter was properly enrolled. In other words, the
court must decide
whether there was, in fact, sufficient urgency to
have justified a departure from the timeframes prescribed under rule
6(5) of
the URC.
Nature
of the application
[26]
In
Luna
Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture
Manufacturers)
,
[8]
Coetzee J listed the degrees of urgency that a court would usually
encounter. The least urgent is a departure from the rule 6(5)
timeframes such that the application is set down for hearing on a
motion court date less than ten days after service. The most
urgent
is where the applicant cannot possibly wait until the next court day
and the application is set down at any reasonably convenient
time,
even if that be at night or during a weekend.
[9]
Of particular relevance to the present matter is the distinction that
Coetzee J made between urgent applications and
ex
parte
applications that fell under rule 6(4).
[10]
The latter comprise a type of application
sui
generis
,
resorted to when there is a threat of immediate harm.
[27]
Despite not being described as such, the present application is
ex
parte
in nature. It is apparent that the applicants intended that
no notice be given to the respondents before seeking a rule
nisi
.
[28]
The
provisions of rule 6(4) indeed permit such an approach but only in
limited circumstances.
[11]
In
Minister
of Environmental Affairs v Recycling and Economic Development
Initiative of South Africa NPC
,
[12]
Henney J had this to say about
ex
parte
applications:
‘…
Courts are
loathe to grant orders on an
ex
parte
basis. It would usually discourage litigation by stealth or ambush
unless there are compelling reasons to do so. In only a limited
number of situations can matters be brought
ex
parte
.
One of those would be where immediate relief is sought, even though
temporary in nature, because of imminent harm that would ensue
should
the relief not be granted.’
[13]
[29]
Whether the applicants intended to bring the application on an
ex
parte
basis or whether the practical effect of the court’s
directions was that the application was brought on notice, an onus
rested
on the applicants to demonstrate the urgent nature of the
matter. It remains to be seen whether they have done so successfully.
Grounds
of urgency
[30]
The applicants have relied on the following grounds of urgency: the
first respondent had
ignored the correspondence sent by the
applicants’ attorneys, had not divulged any marketing plan, and
had seemed intent
on selling the land at a value considerably less
than what it was worth. This had given rise to suspicion and disquiet
on the part
of the applicants, who then decided to adopt a proactive
approach to protect their interests.
[31]
The
difficulty with the applicants’ argument is that the risk of
the first respondent’s acting to their possible prejudice
has
existed since 29 November 2022. This was when Mr van der Lingen
requested details of the first respondent’s intentions
and
received no response. Until Ms Jordaan’s subsequent
communication, there was nothing to have suggested that the first
respondent was not going to finalise the administration of the estate
unhindered
[14]
and that she
would sell the land in accordance with Mrs van der Merwe’s
will. There was, moreover, no express term in the
settlement
agreement that obligated her to adopt a marketing plan or to indicate
how the land would be sold and what terms would
apply. When Ms
Jordaan indicated, on 3 February 2023, that L[...] had already been
sold and that the first respondent intended
to proceed with the sale
of the W[...] farms to the sixth respondent, the applicants ought to
have seen the writing on the wall,
so to speak. Any remaining doubt
would have been entirely removed upon the expiry of the 48-hour
deadline that Mr van der Lingen
imposed in his correspondence of 6
February 2023. Why the applicants waited until 28 February 2023
before launching an
ex
parte
application was never satisfactorily revealed either in the papers or
in argument. It is difficult not to dispel the impression
that such
urgency as may have existed was self-created.
[32]
The other difficulty with the applicants’ argument is the
premise upon which the
application is based, i.e. that they will
suffer immediate harm if the relief is not granted. At the heart of
it all is the applicants’
reliance on the allocation of
significant renewable energy projects to the land, giving rise to the
contention that the land is
worth considerably more than what the
respondents are prepared to accept. Upon closer examination of the
applicants’ argument,
however, several weaknesses come to
light.
[33]
On the applicants’ own version, the developer merely enjoys
preferred bidder status
in relation to the national government’s
renewable energy procurement programme. It has not actually exercised
the option
to register either a long-term lease or a servitude over
the land, pending the conclusion of the procurement process. The
developer,
in other words, has yet to be appointed. Furthermore, the
applicants aver that the developer has already started with
construction
activities and that ‘groundwork is underway’.
What exactly this means is far from evident. This may simply mean
that
preliminary preparations have been carried out, as would usually
be the case, in anticipation of the possible award of the tender
to
the developer. Mr Crouse’s valuation, moreover, is based merely
on his preliminary findings. These constitute, in his
words, a ‘broad
brush approach’. His valuation was carried out as a ‘desktop
exercise which requires detailed
investigation and [the] refinement
of data to achieve further reliability’. The respondents have
pertinently called into
question Mr Crouse’s valuation,
contending that little value can be ascribed to the renewable energy
project until the finalisation
of contracts in that regard.
[34]
Overall, the applicants’ argument that the land is
significantly undervalued seems
to be based upon a vague set of
facts, obscured by a great deal of speculation and uncertainty. The
upshot of this is that the
court finds it difficult to be persuaded
that harm is indeed imminent, warranting an
ex parte
application, on no notice at all to the respondents.
Whether
to deal with the merits
[35]
A court, at
this stage, may be inclined to finalise the matter. Papers have been
filed and submissions have been made on the merits.
In
Caledon
Street Restaurants CC v D’ Aviera
,
[15]
however, Kroon J made the following observation:
‘
It is to be
emphasised that the fact that, in the result, and after a
postponement of the matter, the papers are complete by a particular
date and the matter is in that sense ripe for hearing, must not be
allowed to cloud the issue whether the applicant’s modification
of the rules on the grounds of urgency was unacceptable. Thus, for
example, if
in
casu
,
it was wrong for the applicant to stipulate that the matter would be
heard at 3 pm on 22 October 1997, but on the other hand,
it would
have been in order had the applicant given notice to the respondent
on 21 October 1997 that the matter would be heard
on 24 October 1997,
the temptation is to brush the wrong handling of the matter and the
applicant’s presentation thereof
as urgent beyond what was
justified, under the mat. The papers had to be read to adjudicate the
argument about urgency and it could
come across as such a waste not
to decide the merits. A refusal to do so would entail all the work
having to be done
de
novo
.
The temptation is enhanced by the circumstance that an appropriate
order for costs against the applicant can be resorted to. The
fact
that I had been obliged to read the papers on the evening of 21
October 1997- I was to preside in the motion court on 22 October
1997- and the difficulties and pressure which the respondent, and the
applicant as well for that matter, and their legal representatives
experienced in the completion of the papers, could easily be allowed
to fade into the background. However, the attractiveness of
finally
disposing of the litigation should not be allowed to govern. The
approach should rather be that there are times where,
by way of
non-suiting an applicant, the point must clearly be made that the
rules should be obeyed and that the interest of the
other party and
his lawyers should be accorded proper respect, and the matter must be
looked at to consider whether the case is
such a time or not.’
[16]
[36]
Here, the applicants have had just short of three weeks to decide
upon a strategy, consult
with their legal team, and prepare papers.
In the end, less than two days’ notice was given to the
respondents. If the timeframe
that had been proposed in the
certificate of urgency had been adopted, then no notice at all would
have been given and the matter
would have proceeded on an
ex parte
basis. The applicants’ self-created urgency and failure to have
demonstrated proper grounds of urgency have created considerable
prejudice for the respondents. The court cannot simply turn a blind
eye to this aspect. The merits cannot be decided at this stage.
Relief
and order
[37]
In the circumstances, the court is satisfied that the matter was not
properly enrolled.
There was insufficient urgency for the applicants
either to have launched an
ex parte
application to obtain the
relief sought without notice or to have truncated the rule 6(5)
timeframes with such severity as to have
prejudiced the respondents
in the preparation of their answering papers.
[38]
Overall, the matter cannot be said to be ripe for determination. Both
sets of parties have
intimated, in their papers, the need for further
affidavits. The determination of the matter would also benefit from
heads of argument,
which were not available at the time that the
matter was originally heard.
[39]
In relation to costs, there is no reason why the usual principle
should not apply. The
respondents are entitled to recover their
expenses. An adverse costs order against the applicants would also
serve to mark the
court’s displeasure with the way the
application has been managed.
[40]
Consequently, the following order is made:
(a)
the matter is removed from the roll; and
(b)
the applicants are liable for the respondents’ wasted costs,
jointly and
severally, in the event of one paying the others to be
absolved.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE
For
the applicants:
Adv
Cole SC, instructed by Whitesides Attorneys, Makhanda.
For
the respondents:
Adv
Brown, instructed by Nolte Smit Inc., Makhanda
Date
of hearing:
03 March 2023.
Date
of delivery of judgment:
22 March 2023.
[1]
Own
translation.
[2]
The first respondent states that Mr
Chris
van der Merwe predeceased Mrs van der Merwe, with the implication
that the estate was to be distributed equally amongst
the surviving
heirs.
[3]
Joint
Rules of Practice for the High Courts of the Eastern Cape Province,
published under Notice 357, in GG 41733, 25 June 2018.
[4]
Unreported,
ECG case no 1076/2021, dated 4 May 2021.
[5]
At
paragraph [6].
[6]
2021
(1) SA 386 (ECG).
[7]
At
paragraphs [17] to [20].
[8]
1977
(4) SA 135 (W).
[9]
At
137A-E.
[10]
At
136H.
[11]
Turquoise
River Incorporated v McMenamin
1992
(3) SA 653
(D), at 657D. See, too, the discussion in Van
Loggerenberg,
Erasmus:
Superior Court Practice
(Jutastat e-publications, RS 20, 2022), at D1-59 to D1-60.
[12]
2018 (3) SA 604
(WCC).
[13]
At
paragraph [198].
[14]
This
was the expression used in clause 6.1 of the settlement agreement.
[15]
[1998]
JOL 1832 (SE).
[16]
At
pp 10-11.