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[2022] ZAFSHC 243
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Hattingh N.O. and Another v Haasbroek and Others (3149/2022) [2022] ZAFSHC 243 (19 September 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO: 3149/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
SANDRA-ANN
HATTINGH
N.O.
1
st
Applicant
LEONARD
JOHANNES HAASBROEK N.O.
2
nd
Applicant
[As
Trustees on behalf of
DRIEFONTEIN TRUST-
IT
000825/2016 (B)]
and
LEONARD
JOHANNES HAASBROEK
1
st
Respondent
[Identity
number:
[....]
]
THE
REGISTRAR OF DEEDS, BLOEMFONTEIN
2
nd
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
3
rd
Respondent
HEARD
ON:
08 SEPTEMBER 2022
JUDGMENT
BY:
MHLAMBI, J
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email and released to
SAFLI. The date and time for
hand-down are deemed to be at 16h30 on 19 September 2022.
Introduction
[1]
The applicants seek an order compelling the respondents to transfer
two farms situated
in the district of Ladybrand into their names as
the trustees of the Driefontein trust.
[2]
The first respondent opposes the application on the basis that there
are material
factual disputes in the application which render it
fatally defective. The applicants were informed that the application
and the
relief sought would be contested on this basis and that the
applicants’ claim could not be dealt with by means of motion
procedure
[1]
.
[3]
The first applicant (and the deponent to the founding affidavit)
stated that:
3.1
The first respondent, a farmer in the district of Ladybrand, owned
various farms in that area. He accumulated
a huge debt over the years
and approached the second applicant, his son, to lend him money. Over
a period of 18 months, the loans
amounted to R 1 774 909.31
[2]
.
3.2
By March 2022, the first respondent’s financial position
deteriorated to such an extent that he was
unable to repay the loans.
The first respondent resigned as a trustee of the Driefontein trust
and his son, the second applicant,
became a trustee in his place
[3]
.
In April 2022, the first respondent and the second applicant agreed
to an arrangement as to the repayment of the loans and entered
into a
deed of sale which stipulated that the two farms, Hoogbron 535 and
Mooifontein 534, held by deed of transfer T6469/2014,
would be
transferred to the applicants in
lieu
of
the repayment of the loans
[4]
.
3.3 The
first applicant was involved in the negotiations and she made a
calculation of the total amount of loans
which amounted to R
1 774 909.31. A reconciliation of these loans was attached
as annexure “D3” having as
heading “
Rekonsiliasie
van lenings”.
3.4
A deed of sale for the two farms, reflecting the purchase price of R
1 774 909.31, was signed on
6 April 2022 by the second
applicant as the trustee of the Driefontein trust, and the first
respondent. It was recorded in the
sale agreement that the purchase
price was paid by the seller to the purchaser prior to the conclusion
of the agreement
[5]
. On 9 June
2022, the first respondent caused a letter to be addressed to the
applicants, terminating the said sale agreement.
[4]
The first respondent stated in his answering affidavit that the
applicants sought
to enforce an invalid contract. The applicants had
prevailed on him to donate the farms to the Driefontein Trust, of
which they
were trustees. The beneficiaries of that trust were his
natural heirs. He fell into debt during the pandemic and the
applicants
feared that the farms would be attached and sold in
execution if they were not protected against his creditors. Despite
the clause
in the deed of sale that the purchase price was paid, it
was not. He denied that the trust or the second applicant lent him
the
money. He agreed to the transaction because he could not find a
willing and able buyer for the farms. On finding such a buyer, he
revoked the donation and sold the farm to a third party. It was never
the intention of the parties to conclude a contract of sale
as the
trust did not have, and never had, the means to buy the farm.
[5]
Furthermore, the first applicant failed to append any proof of the
purported loans,
[6]
loan
agreements, proof of payment or letters of demand which was an
indication that the purported facts deposed to by the first
applicant, did not fall within her own personal knowledge. The second
applicant’s confirmatory affidavit was not appended
to the
application even though he was alleged to have provided the
information to the first applicant. It was only appended to
the
applicants’ replication and was dated 16 August 2022.
[6]
In their replying affidavit, the applicants maintained that the first
respondent relied
on the cancellation of the contract and nothing
more in his negotiations with the applicant.
[7]
He only changed tack in his answering affidavit when he introduced
various new contradictory defences which were fictitious and
improbable
[8]
. It was therefore
clear that the intention of the respondent was to muddy the waters in
an effort to move for the dismissal of
the application on the basis
of a dispute of fact. The first respondent’s only defence
before the application was brought,
was that the contract was
cancelled, but in his opposing papers, he relied on eight different
defences of which the cancellation
of the contract was but one.
[7]
It was suggested in the replying affidavit that the court should take
into account
that a dispute, based on fictional evidence (not a real
dispute), was before the court.
[9]
[8]
The first respondent’s opposition is that it was foreseeable
that material disputes
of fact would arise, that such material
disputes of facts emerged from the papers, and that they cannot be
resolved without the
advantages of a trial. I was referred to various
authorities in this regard of which I shall mention but a few.
[9]
In
National
Director of Public Prosecution v Zuma
[10]
it was
held that “
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 their
probabilities.”
In
Buffalo
Fright Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and
another,
[11]
it was
held that “
a
court must always be cautious about deciding probabilities in the
face of conflict of fact in affidavits. Affidavits are settled
by
legal advisors with varying degrees of experience, skill and
diligence and a litigant should not pay the price for an advisor’s
shortcomings. Judgment on credibility of the deponent, absent direct
and obvious contradictions, should be left open.”
In
Tamarillo
(PTY) Ltd v B N Aitken (Pty) Ltd,
[12]
it was
held that “
a
litigant is entitled to seek relief by way of notice of motion. If he
has reason to believe that facts essential to the success
of his
claim will probably be disputed he chooses that procedural form at
his peril, for the court in the exercise of its discretion
might
decide neither to refer the matter for trial nor to direct that oral
evidence on the disputed facts be placed before it,
but do dismiss
the application.”
[10]
In oral address, the applicant’s counsel conceded that before
the application was launched,
there were already two disputes in
existence. On 29 June 2022, the first respondent’s attorneys
addressed a letter to the
applicant’s attorneys requiring proof
of payment of the purchase price in the sum of R 1 774 909.31
on/or before
6 April 2022.
[13]
It was stated in the letter that the attorneys were instructed that
the parties entered into what appeared to be a contract, but
that
there was no consideration paid for the
merx
.
Therefore, the contract could not be formed legally or be binding,
and as a result, the parties’ statement was worthless
as there
was no binding contract.
[11]
The applicant’s attorneys responded to the letter as
follows
[14]
:
“
2.
With reference to your paragraph 1 we kindly refer your attention to
clause 5 of the deed of sale, also
annexed hereto for your
convenience and confirm that the seller confirmed that he had
received the entire purchase price before
the agreement was
concluded.”
This
letter elicited the following response from the first respondent’s
attorneys
[15]
:
“
Your
letter dated 30 June 2022 refers.
You are being
disingenuous or your client is lying to you. Your client has not paid
the purchase price and your response confirms
that there never was a
serious intent to conclude an agreement.
Any application of
whatever nature will be vigorously defended and met with a punitive
cost order. All our client’s rights
are reserved.”
[12]
It is evident from the contents and the language used in the
correspondence that the parties
were spoiling for a fight and that
any legal steps taken would be vigorously opposed.
[13]
The aspect of the reconciliation of the loans is also another point
of concern. The document,
annexed as annexure “D3” to the
application reads as follows:
REKONSILIASIE VAN
LENINGS
LEONARD
LEO
Leo
Betalings
1,127,103,27
Plaas transaksie
koste
131,667.18
Ander Inkomste
Kalwer
aankope
-18.200.00
-59.725.00
Kalwer
verkope
26,250.00
96,790.00
Kalwer
Uitgawes
-40,282.67
-51,248.75
Bestuursfooi
25%
24, 197.50
24, 197.50
Huurinkomste Theo
35,000.00
Huur van Leo
Bakkie
17,500.00
Min Salarisse
Brdy
187,002.00
Huur van
Trekker
-28,000.00
-28,000.00
Versekering
Leo
20,850.00
-20,850.00
Diesel
plant
-20,680.00
Uitgawes
Brdy/Plant
-39,589.50
-39,589.50
SARS
-43,708,65
-43,708,65
1,272,063.05
Rekenmeesterfooie
92,950.00
Prof
Fooie
211,200.00
Ander uitgawes
(Fisies)
198,696.26
-63,483.32
1,774,909.31
[14]
This document serves as the centrepiece of the calculation of the
purchase price. There are no
descriptive notes to indicate the source
and computation of the figures. SARS is mentioned but is allocated no
corresponding monetary
value in the columns. Amounts are allocated in
two columns under the headings: Leo and Leonard. It is neither clear
whom the names
refer to nor how and why the amounts have been so
allocated. At the time of the filing of the application, the second
applicant
filed neither an affidavit nor a confirmatory affidavit.
His affidavit was only attached in replication. His affidavit was
crucial
at the inception of the application as he is alleged to have
advanced the loans to the first respondent.
[15]
The bulk of the submissions and arguments on behalf of the applicants
was aimed at the eight defences allegedly
raised by the first
respondent. These refer to the first respondent denying to have
received the purchase price; donating and revoking
the donation of
the farm; the donation being disguised as a sale in order to
circumvent the provisions of the Insolvency Act; no
contract having
come into existence between the parties and that the trust did not
have the necessary funds to buy the farms. It
was submitted that
these allegations did not make sense whatsoever and should be
rejected as far-fetched and untenable. The court
was urged to adopt a
robust approach in bringing finality to the case as a real dispute
was not shown to exist.
[16]
Even if it is accepted that the first respondent
acted as stated, that does not assist nor rescue the applicants
from
the very first hurdle of their choice to initiate motion proceedings
instead of action proceedings against the first respondent.
It was
clear from the word go that there was a dispute of fact between the
parties. The applicants’ counsel conceded during
oral argument
that a dispute already existed before the application was launched. A
litigant who seeks relief by way of notice
of motion, chooses that
procedural form at his peril if he has reason to believe that the
essential facts to the success of his
claim will probably be
disputed.
[16]
[17]
The reconciliation statement was drafted by the first applicant in
her capacity as the financial advisor
from the information supplied
by,
inter alia
, the second applicant. The reconciliation
statement is at the core of the dispute. It determined the purchase
price which apparently
represented the loan capital advanced to the
first respondent by the second applicant. The calculation of the
purchase price and/or
the validity of the reconciliation statement
was in issue before the application was launched. The exchange of
correspondence between
the respective legal representatives was
clearly indicative of a serious dispute of fact, incapable of
resolution on the papers.
[18]
I, therefore, come to the conclusion that this
matter cannot be resolved on the papers as they currently
stand. The
dispute is of such a nature that it cannot be satisfactorily
determined without the advantages of a trial to estimate
the
credibility of witnesses and observe their demeanour.
[17]
I find that a real dispute, and not a fictitious one, does exist
in
casu
.
The application stands to be dismissed for the reasons stated above.
[19]
The successful party is entitled to the costs.
[20] I
make the following order:
The application is
dismissed with costs.
MHLAMBI,
J
On
behalf of the applicant:
Adv. DM Grewar
Instructed
by:
Stander & Associated Attorneys
Unit
2, Twee Pres Building
President
Steyn & 2
nd
Avenue
Westdene
Bloemfontein
On
behalf of the respondent:
Adv. HJ Van Der Merwe
Instructed
by:
D Cloete Inc. Attorneys
C/O
Van Wyk Attorneys
7
Collins Road
2
nd
Floor, Linde Building
Arboretum
Bloemfontein
[1]
Paragraph 5 of the
Answering Affidavit.
[2]
Paragraph 6.2 of the
Founding Affidavit.
[3]
Paragraph 6.3 of the
Founding Affidavit.
[4]
Paragraph 6.4 and 6.5 of
the Founding Affidavit.
[5]
Paragraph 7.3 of the
Founding Affidavit.
[6]
Paragraph 19.2 of the
Answering Affidavit.
[7]
Para 3.1 of the replying
affidavit.
[8]
Paragraph 3.2 of the
Replying Affidavit.
[9]
Paragraph 8 of the
replying affidavit.
[10]
[2009] All SA 243 (SCA):
2009 (2) SA 277 (SCA).
[11]
2011 (1) SA 8 (SCA).
[12]
1982 (1) SA 398 (A)
[13]
Annexure D8 to the
indexed papers.
[14]
Letter dated 30 June
2022 as per annexure “D9” of the indexed papers.
[15]
Annexure “D10”
of the indexed papers.
[16]
Tamarillo, supra
.
[17]
Da Matta v Otto NO
1972(3) SA 858 (A).