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2022
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[2022] ZALMPPHC 54
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M and H Lowveld (Pty) Ltd t/a Pumbaa Wildlife Park v Eventieria Wildlife Park (Pty) Ltd and Another (985/202) [2022] ZALMPPHC 54 (25 October 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 985/202
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED
DATE: 25/10/2022
In
the matter between:
M
AND H LOWVELD (PTY) LTD
T/A
PUMBAA WILDLIFE PARK
APPLICANT
And
EVENTIERIA
WILDLIFE PARK (PTY) LTD
FIRST RESPONDENT
JACOBUS
MARTHINUS BROOKDRYK
(In
his capacity as executor of estate late Erich Venter)
SECOND RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant has brought an application against the respondents
seeking orders that it be declared
the owner of the snow–white
tiger and all other species of animals and birds that it has
specified in the founding affidavit;
that the respondents be
interdicted and restrained from interfering with or obstructing the
hand over process of the snow–white
tiger and other animals and
birds from their current location to a designated location by the
applicant; alternatively that the
sheriff or deputy sheriff
Modimolle/Vaalwater be authorised to, with the assistance of Mr
Maritz to enter the premises of the respondents
to identify and
immediately collect and transport the animals and birds specified to
the premises of the applicant; that for the
purposes of this order,
the applicant be exempted from the requirement of a permit for
purposes of collecting and transporting
all the animals and birds;
and that the applicant pay the respondents the remaining credit
balance of R156 000.00 within a period
of four months, with the first
payment being payable on 10
th
day of the first month after
the judgment and order granted by this court, and the remaining three
payments on the 10
th
day of each of the succeeding three
months. The respondents are opposing the applicant’s
application.
[2]
According to the applicant on 23
rd
October 2020, Hendrik
Maritz who is the owner and/or director of the applicant, entered
into discussion with Eric Venter (deceased)
for the purchase of the
snow–white tiger and other species of animals and birds. That
their discussion became serious, and
on 8
th
December 2020
the applicant paid the deceased R65 000.00 partly in cash and partly
in bank deposit for a snow–white tiger,
and a further R175 000
deposit for the other species of animals and birds. The applicant
alleges that after that it started the
process of obtaining the
relevant permit for the transportation of the snow–white tiger
which permit was granted on 17
th
December 2020, and was to
expire on 17
th
January 2021. That the deceased passed away
on 9
th
December 2020 before the transportation plans could
begin as planned.
[3]
The applicant avers that on 6
th
January 2021 represented
by Mr Maritz, it started the process of collecting the snow–white
tiger and was referred to Marius
Broodryk (second respondent) who is
the appointed executor in the estate of the deceased. The second
respondent referred the applicant
to Annelie Botha from Cornel Botha
attorneys who confirmed their appointment as attorneys of record for
the estate of the deceased.
Annelie informed the applicant that it
will not collect the tiger as planned as it was not the owner, and
further that it did not
effect payment for the deposit of the other
species of animals and birds. The applicant was further told that its
version of events
was not credible, and that it should proof its
claims against the estate.
[4]
According to the applicant, this was not the first sale that it had
concluded with the deceased. That
in the past it had purchased cats
from the deceased and paid him by cash. That the deceased preferred
to be paid by cash to a designated
account or in person. That in the
current matter it had paid the deceased by cash for other animals and
that this transaction too
was no different as the deceased preferred
to be paid by cash. It is the applicant’s contention that the
snow–white
tiger did not form part of the deceased estate, but
that it was owned by the first respondent, and that the assets of the
first
respondent did not form part of the estate of the deceased.
That the deceased personal estate including the value of the
shareholding
in the business may be subject to administration by the
relevant administrators. That the agreement which the applicant had
with
the deceased was partly oral and written.
[5]
The answering affidavit of the first respondent, has been deposed by
Franses Human who alleges that
she is the sole remaining director and
80% shareholder of the first respondent, with the other director
being the deceased who
had 20% shareholding in the first respondent.
That prior to the death of the deceased, the Eventieria was jointly
managed and run
by the first respondent which owns and runs
restaurant on the property, and the deceased who was trading as
Grootfontein Boerdery
who owned and ran the zoo (Wild Life Park) on
the property. That the animals in the zoo belonged to the deceased in
his personal
capacity.
[6]
The first respondent denies owning any wildlife, and that all the
wildlife belonged to the estate of
the deceased which is under the
control of the second respondent. The first respondent denies that
itself or any member of its
board acting on behalf of the first
respondent had entered into an agreement with the applicant or anyone
else for the sale of
animals and birds. The first respondent further
denies that itself or the member of its board acting on its behalf
has received
payment from the applicant.
[7]
The second respondent in his answering affidavit has conceded that he
is the appointed executor in the
estate of the deceased. That the
first respondent and the deceased were his clients from 2015. That he
was well acquainted with
their respective business operations and
their financial affairs as he was their auditor. That the first
respondent does not own
or possess any animals and also does not
trade in animals. According to the second respondent, the first
respondent derives its
income from conducting the business of a
restaurant. That the farm from which the first respondent is
conducting its business is
owned by Dakota Trust, and that the
deceased had rented the premises from the trust in his personal
capacity.
[8]
According to the second respondent the deceased derived his income
from various business activities.
The deceased was the sole
proprietor of Grootfontein Boerdery which conducted the business of
the zoo – like park on the
property where the first respondent
is operating the restaurant. It is the second respondent’s
contention that all the animals
that can be found on the premises
belonged to the deceased, and that they therefore form part of the
assets of the deceased estate.
The second respondent submit that for
that reason those animals are legally in his possession and/or under
his control, pending
the finalisation of the administration of the
deceased’s estate.
[9]
The second respondent alleges that he was having a close relationship
with the deceased and was therefore
privy to all professional
transactions entered into by the deceased. That he was notified
during the beginning of December 2020
by the deceased that Maritz was
desirous of purchasing five animals which were two white lions, one
tabby tiger and two wolves.
The second respondent alleges that on the
7
th
December 2020 Dr Pretorius the veterinarian came to
the farm and sedated the five animals which Maritz took delivery of
them. Doctor
Pretorius had deposed a confirmatory affidavit
corroborating the second respondent’s version in as far as it
relates to him.
[10]
The second respondent denies that the deceased had ever entered into
negotiations for the sale of the snow–white
tiger and other
species of animals and birds with the applicant. It is the second
respondent’s contention that the transaction
that was in limbo
at the time of the deceased death related to two white lions, one
tabby tiger and two wolves only, which the
applicant had collected.
That the applicant should have lodged his claim with the executor of
the deceased estate. The second respondent
submitted further that
there is a factual dispute which is evidenced by the founding
affidavit, which renders the applicant’s
application an
exercise in futility.
[11]
In reply to the second respondent’s answering affidavit, the
applicant had stated that a valid contract
of sale was concluded
between the applicant represented by Maritz as the owner and/or
director of the applicant, and the first
respondent represented by
the deceased in both his personal capacity and his capacity as the
shareholder and director of the first
respondent.
[12]
The second respondent had submitted that there is a factual dispute
of fact which the applicant was aware
of when it launched its
application. The applicant in its founding affidavit has stated that
on 14
th
January 2021 it was informed by Annelie Botha an
attorney appointed for the deceased estate that it will not be a
position to collect
the tiger as it was not the owner, and also that
there was no proof that it had paid a deposit for the other species
of animals
and birds. Further the applicant is relying on a partial
written and oral agreement. Even with the alleged written agreement,
the
applicant has failed to attach a document signed by both Maritz
and the deceased clearly spelling out the terms of the agreement.
From the beginning since the respondents were disputing the existence
of the alleged sale, and the applicant did not have all the
documentary proof, it was clear to the applicant that it will need
some form of oral evidence to proof its claim.
[13]
The applicant had attached a certain document to its founding
affidavit which it regards as an agreement
for the sale of the
animals and birds. However, that document looks like a letter/invoice
allegedly signed by the deceased only.
What is strange with that
document is that it is signed by the deceased and addressed to the
deceased. The applicant had failed
to explain this anomaly in its
papers. The bank deposit slips which the applicant has attached as
proof of payment, does not show
who the payee was, oral evidence will
be needed to supplement that.
[14]
In
National
Director of Public Prosecutions v Zuma
[1]
Harms DP said:
“
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
is well established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise on the affidavits,
a final order
can be granted only if the facts averred in the applicant’s (Mr
Zuma) affidavits, which have been admitted
by the respondent (the
NDPP), together with the facts alleged by the latter, justify such
order. 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 papers.”
[15]
The applicant has launched its application with the full knowledge
that its claim was been disputed by the
respondents, and was also
relying on a partly written and oral agreement which was also
disputed by the respondent. For it to prove
its claim it will have to
present oral evidence. It is trite that an applicant who elects to
proceed by way of motion proceedings
despite being aware that a
serious dispute of fact was bound to develop, runs the risk that the
application may be dismissed with
costs. It is not proper that an
applicant should commence proceedings by way of motion procedure with
the full knowledge that the
disputes of fact might arise. ( See
Room
Hire Co (Pty) Ltd v Jeppe Street
Mansion
(Pty) Ltd
[2]
).
On this point alone the applicant’s application stands to be
dismissed.
[16]
The other issue to be determined is whether the applicant should have
resorted to legal action before it
lodged its claim against the
estate of the deceased which is being winded up by the second
respondent. Section 26 of the
Administration
of Estates Act
[3]
(Act) provides that immediately after the letters of executorship
have been granted to him, and executor shall take into his custody
or
under his control all property, books and documents in the estate and
not in possession of any person who claims to be entitled
to retain
it under contract, right of retention or attachment. The second
respondent had been duly appointed as the executor of
the deceased
estate and issued with the letters of executorship. Thereafter he
took control of all the property, books and documents
of the
deceased. That included the animals and birds that are the subject of
the applicant’s claim.
[17]
Section 29 of the Act provides that the claims against an estate of a
deceased person be lodged with the
executor of the estate. Section 32
of the Act provides a procedure to be followed by the executor if
he/she disputes a claim lodged
against the estate. Section 33 of the
Act provides that if any executor rejects any claim against the
estate, he shall forthwith
notify the claimant in writing by
registered post and shall state in the notice his reasons for
rejecting the claim. From the wording
of section 33 it is clear that
the executor must first reject and give reasons for the rejection
before the claimant can exercise
any of his/her right in enforcing
his/her claim against the estate.
[18]
The applicant wanted to circumvent that procedure of lodging its
claim against the estate by rushing to court
prematurely. The
applicant had not even lodged its claim with the executor of the
deceased estate, but only had a discussion with
the attorney of the
deceased estate. For a claim to be properly rejected, it must also be
formally lodged. When the applicant institute
an action against the
estate of the deceased, it must be having reasons for rejection. In
my view, the applicant’s application
is premature, and on this
point, it also stands to be dismissed.
[19]
In the result I make the following order:
19.1 The applicant’s
application is dismissed with costs on party and party scale, which
costs will include the costs of two
counsel for the first respondent.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the
applicant
: Adv V G Shakoane SC
Adv
Maisela
Instructed
by
: Macbeth Attorneys Inc
Counsel for the first
respondent
: Adv BP Geach SC
Adv JRF Ernst
Instructed
by
: Cornel Botha Attorneys
Counsel for the second
respondent : Adv De Wet Keet
Instructed
by
: DVDM Inc Attorneys
Date
heard
: 10
th
October 2022
Electronically
circulated on
: 25
th
October 2022
[1]
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at 290D-F
[2]
1949
(3) SA 1155 (T)
[3]
66
of 1965