Brink v Dell and Another (3898/2021) [2022] ZAFSHC 41 (7 March 2022)

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[2022] ZAFSHC 41
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Brink v Dell and Another (3898/2021) [2022] ZAFSHC 41 (7 March 2022)

IN THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable:
Of
Interest to other Judges:
Circulate
to Magistrates:
NO
NO
NO
Case
no:
3898/2021
In
the matter between:
THOMAS
FRANCOIS BRINK
Applicant
and
FREDERICK
WHITE DELL
1
st
Respondent
THE
REGISTRAR OF DEEDS BLOEMFONTEIN
2
nd
Respondent
CORAM:
JP
DAFFUE J
HEARD ON:
07
MARCH 2022
DELIVERED ON:
07
MARCH 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 16h00 on 07 March 2022.
[1]
I have been allocated the applicant’s application for leave to
appeal for adjudication
in so far as Loubser J who dealt with the
main application is on long leave.
[2]
The applicant’s application to have a notarial lease agreement
(“the lease”) declared
validly cancelled was dismissed with
costs.  The unsuccessful applicant and owner of the farm,
subject to the lease, now applies
for leave to appeal to the Supreme
Court of Appeal, alternatively the full bench of this division.
[3]
Reliance is placed on both
s 17(1)(a)(i)
and (ii) of the
Superior
Courts Act, 10 of 2013
.  It is submitted that the applicant has
good prospects of success on appeal, but more importantly, leave
should be granted
for some other compelling reason as provided for in
sub-section 17(1)(a)(ii).  In this regard the applicant relies
on
Caratco (Pty) Ltd v
Independent Advisory (Pty) Ltd,
[1]
ie that a compelling reason includes either an important question of
law or a discrete issue of public importance that will have
an effect
on future disputes.
[4]
The applicant relies on breach of contract by the first respondent
and tenant of the
farm based on transgression of two separate clauses
of the lease, to wit clause 4.2 and 4.10 and his consequent valid
cancellation
of the lease.
[5]
The applicant mainly focuses on the following issues:
5.1
The 1
st
respondent fails to keep the farm free of any
undesirable weeds and Slangbos in particular and also fails to
prevent the spreading
thereof on the farm in contravention of clause
4.2;
5.2
The 1
st
respondent allows overgrazing of the farm contrary
to proper agricultural practices contrary to clause 4.10.
[6]
The applicant not only relies on the Conservation of Agricultural
Resources Act (“CARA”),
[2]
and its regulations, but also on s 24 of the Constitution.  This
last-mentioned legislative instrument stipulates that everyone
has
the right to have the environment protected.
[7]
The application was dismissed based on the presence of factual
disputes and how these
should be adjudicated in motion procedure.
The court relied on the
Plascon
Evans
principle.
It held that the 1
st
respondent’s version should prevail.  It found in respect of
over-grazing that there was a real dispute and that the 1
st
respondent’s version could not be dismissed as fictitious or
without any merit.
[3]
In respect of the Slangbos issue, it held that Slangbos was most
probably already present at the start of the lease and that
the 1
st
respondent was adhering to the obligation to prevent the spreading of
Slangbos, bearing in mind the controlling steps taken by him.
[4]
The court held that the applicant knew beforehand that the 1
st
respondent would resist the application, and exactly on which
grounds, as these were fully disclosed in correspondence between the
attorneys.
[5]
[8]
Harms DP, writing for a unanimous bench, held in
NDPP
v Zuma
[6]
at para 26:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless
the circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities…….
It may be different if the respondent’s version consists of bald or
uncreditworthy denials, raises fictitious disputes of fact,
is
palpably implausible, far-fetched or so clearly untenable that the
court is justified in rejecting them merely on the papers.”
[9]
I allowed the parties an opportunity to file further heads of
argument which are not
normally required in applications of this
nature.  Additional heads were filed.  The applicant has
not raised any other
issues than those already raised in the main
application, although the point was pertinently raised that the
matter should have been
decided in favour of the applicant based on
the facts that are common cause.
[10]
Although the presence of Slangbos on the farm may be common cause,
this must be seen in perspective and
considering the totality of the
evidence based on the
Plascon Evans
principle.  Such
occurrence is not unique to the farm and
ex facie
the papers
this is a severe problem in particularly the Eastern Free State where
the farm is situated.  Loubser J accepted that
Slangbos was
present on the farm at the start of the lease.  There was no
reason to doubt the version of the 1
st
respondent in this
regard which is actually corroborated by the applicant’s expert.
Does this mean that the 1
st
respondent had to ensure that
the farm was free of Slangbos at any given moment and if this was not
the case, that the lessor might
cancel the lease?  In order to
properly interpret the lease one has to consider the language used,
the purpose of the clause
and all relevant factors present when the
lease was entered into.  An unbusiness-like interpretation is
not called for.
I am not convinced that there are
reasonable prospects of success that another court would find that
the 1
st
respondent is in breach of the lease in so far as
there is a presence of Slangbos on the farm which was also the case
at the start
of the lease.  I cannot imagine that another court
may reasonably find that the clause could be interpreted on the basis
of
a serious breach allowing for cancellation if there are (merely
for the sake of an example) one, two or three Slangbos plants on
the
farm, which perhaps had been there initially, but were not destroyed
within a particular time limit.
[11]     I am
not persuaded that another court would find that a real and bona fide
dispute has not arisen pertaining
to the steps taken to remove
Slangbos on the farm.  The 1
st
respondent has taken
specific steps and there is no reasonable possibility that another
court would find that he should not, for
example, resort to burning
the Slangbos which is not pertinently prohibited in the regulations.
[12]     Although
the 1
st
respondent may be criticised for adopting a
rotation system on the particular farm in conjunction with other
farms, his evidence
and methodology could not be rejected as
far-fetched and false.  Again, there was no reason to reject his
version.  There
are also no reasonable prospects that another
court would come to a different conclusion.
[13]    It is
correct, as submitted by Mr Wannenburg, that the court is bound to
also consider whether there is some
other compelling reason why leave
to appeal should be granted.  However, the court stated in
Caratco
[7]
that this aspect cannot be considered without considering the merits
which remain vitally important.
[8]
[14]     The
applicant’s counsel knew that he was between the devil and the deep
blue sea during the oral argument
before Loubser J and therefore
requested a referral of the matter to trial or oral evidence on what
he describes to be a narrow issue,
ie the breach of the two
provisions of the lease.
[9]
Such a request was made belatedly during the oral argument, but there
was no reason to adhere thereto, bearing in mind the
applicant’s
knowledge of the 1
st
respondent’s stance prior to litigation and the enormity of the
evidence to be led and particularly the cross-examination in respect
thereof, in order to establish if the 1
st
respondent was in breach of the lease to such an extent that it
entitled the applicant to cancellation.  It is no doubt not
a
matter of a simple black or white.  There are numerous issues to
be dealt with such as the interpretation of the lease, the
alleged
breach and perhaps even the severity thereof, the different
approaches to removing Slangbos, bearing in mind the problems
experienced over a huge area in the Eastern Free State, and also
modern farming methods based on for example rotation of cattle as
explained by 1
st
respondent, a farmer with years of experience.
[15]     I
have not been convinced that a court of appeal would reasonably
arrive at a conclusion different to
that of Loubser J.  There
are no reasonable prospects to grant leave to appeal under
sub-section 17(1)(a)(i) and I am also not
convinced that there is
some other compelling reason why the matter should be sent on appeal
as provided for in sub-section 17(1)(a)(ii).
[16]
Consequently, the following order is issued:
The applicant’s application for
leave to appeal is dismissed with costs.
J P DAFFUE J
On
behalf of the Applicant
:      Adv WF Wannenburg
Instructed
by
:      Kramer Weihmann Inc
Bloemfontein
On
behalf of the 1
st
Respondent  :
Adv WJ Groenewald
Instructed
by
:      Claude Reid Inc
Bloemfontein
[1]
2020 (5) SA 35
(SCA) at para 2
[2]
43 of
1983
[3]
Judgment
para 26
[4]
Judgment
para 30
[5]
Judgment para 32
[6]
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at paras 26
[7]
Supra
in para 2 of the judgment
[8]
See also
Ramakatsa
and Others v African National Congress and Another
(Case
No. 724/2019)
[2021] ZASCA 31
(31 March 2021) at para 10
[9]
See
para 57 of his present heads of argument