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[2022] ZANCHC 58
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Nieuwoudt v Vos and Others (2004/2019) [2022] ZANCHC 58 (7 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 2004/2019
Heard:
21/02/2021
Date
delivered: 07/10/2022
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
GERT
JOHANNES HERMIAS
WILHELMUS
NIEUWOUDT
(I.D.
No: [....])
Applicant
and
MARTIN
VOS
(I.D.
No: [....])
First
Respondent
YOLANDIE
VOS
(I.D.
No: [....])
Second
Respondent
SOL
PLAATJE MUNICIPALITY
Third
Respondent
In
re:
MARTIN
VOS
First
Applicant
YOLANDIE
VOS
Second
Applicant
And
GERT
JOHANNES HERMIAS
WILHELMUS
NIEUWOUDT
First
Respondent
THE
REGISTRAR OF DEEDS,
KIMBERLEY
Second
Respondent
JUDGMENT
EILLERT,
AJ
[1]
This is a judgment which I had previously reserved in two
applications brought simultaneously,
to wit: an eviction in terms of
the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act, 19 of 1998, as well
as a counter-application thereto.
The Applicant in the application for eviction is Mr Gert Johannes
Hermias Wilhelmus Nieuwoudt
and the Respondents are Mr Martin Vos and
Mrs Yolande Vos. The Applicants in the counter-application are
respectively Mr
Martin Vos and Mrs Yolande Vos, with Mr Nieuwoudt
being the First Respondent therein and the Registrar of Deeds,
Kimberley, being
the Second Respondent. In this judgment I will
for ease of reference refer to the parties herein as they are cited
in the
application for eviction.
[2]
On 5 August 2019 the immovable property of Erf [....], Kimberley,
also known as [….]
M[....] Street, Kimberley (
"the
property"
),
was transferred into the name of the Applicant. Before the
transfer, the property was registered in the names of the
Respondents.
The property is the home of the Respondents.
They purchased the property in 2005 with the assistance of a loan by
First National
Bank, in respect of which a mortgage bond was
registered in favour of the bank to secure the Respondents'
indebtedness.
[3]
The First Respondent conducts business as a livestock broker.
According to him
he does so by way of a close corporation, Lanmar
Verskaffers CC (
"Lanmar"
).
A CIPC company report regarding Lanmar has been provided to Court and
on the face of it, the closed corporation exists.
[4]
The Applicant is a farmer and also a director of a company, BN Handel
(Pty) Ltd (
"BN
Handel"
).
The other director of BN Handel is a Mr Andries Johannes Burger.
[5]
In April 2019, and possibly May 2019, certain business transactions
took place in
which the Applicant and the First Respondent was
involved. These business transactions consisted of the
provision of cattle,
the sale of cattle, the deduction of commission
from the proceeds of the sale and the payment to the Applicant of the
nett proceeds
derived in this manner. I have described the
business transactions in broad terms, as it is the Applicant's
version that
the transaction in April 2019 took place between the
Applicant personally as the seller, and the First Respondent
personally as
the livestock broker, and that the alleged transaction
in May 2019 took place between BN Handel, represented by the
Applicant,
as the seller, and the First Respondent personally as the
livestock broker. However, in his papers the Applicant also
refers
to the First Respondent interchangeably as "Lanmar".
It is the First Respondent's version that all business
transactions
were conducted between Lanmar, represented by the First
Respondent, and BN Handel, represented by Mr Nieuwoudt.
Invoices
that were purportedly issued in respect of the business
transactions have been provided to this Court and I will address
these
invoices in due course. The reason why I have referred to
the alleged transaction possibly taking place in May 2019 will
presently become clear.
[6]
It is common cause that an indebtedness in the amount of R837,456.55
arose as a result
of the sale of cattle. Because of the
conflicting versions set out in paragraph 5 above, a dispute of fact
exists whether
this amount was owed by the First Respondent or
Lanmar, and whether this amount was initially due to both the
Applicant and BN
Handel, or only to BN Handel. Part of the
Applicant's version is that BN Handel's claim resulting from the
(alleged) transaction
in May 2019 was later ceded to him.
[7]
According to the First Respondent, Lanmar conducted its business with
the assistance
of a GWK credit facility. Lanmar started
experiencing financial difficulties during 2019 as a result of the
drought and the
high interest rate charged by GWK. During May
2019 GWK suspended Lanmar's credit facilities causing it to
experience a cash
flow problem.
[8]
It has not been disputed by the First Respondent that Lanmar, or
perhaps the First
Respondent in his personal capacity, did not pay as
per the terms of the agreement that he had had with BN Handel and/or
Mr Nieuwoudt.
[9]
Further events that are common cause are that Mr Nieuwoudt attended a
farmers’
day between Ulco and Barkly West on what must have
been 23 May 2019. Rumours regarding the First Respondent and/or
Lanmar
were going round that either or both were indebted to
creditors to the tune of R14 million and that the First Respondent
had not
made payments as he should have. Mr Nieuwoudt concluded
that the First Respondent's ability to pay was in serious doubt and
that he needed to act. He telephoned his Bloemfontein attorney,
who also advised him that it would be prudent for the Applicant
to
act as soon as possible. Together they decided that the
Applicant, Mr Noordman, the attorney, a Mr Liebenberg, a friend
of Mr
Nieuwoudt, and the attorney's clerk, Mr Bothma, attend at the First
Respondent's residence at approximately 1 o'clock on
the same day.
Mr Liebenberg was also a creditor of the First Respondent in the
amount of R192,922.00. Their purpose
was to discuss "the
matter" with the First Respondent, presumably on the question of
whether the First Respondent and/or
Lanmar was in financial
difficulty, and the payment of the debt owed to the Applicant and/or
BN Handel.
[10]
During the meeting on 23 May 2019, the Applicant requested the First
Respondent to issue an invoice
to BN Handel, which the Applicant says
he had requested from the First Respondent for weeks on end.
The First Respondent
complied with this request. The other
director of BN Handel, Mr Burger, was still at the farmers' day, but
it is alleged
that the Applicant and Mr Burger had resolved that BN
Handel would cede its claim to the Applicant.
[11]
The Applicant then asked the First Respondent to sign an
acknowledgment of debt for the amount
of R837,456.55. In terms
of the acknowledgment of debt, payment of this full amount had to be
made on or before 30 May 2019.
Mr Noordman drafted documents on
his laptop, and Mr Bothma was sent to have the documents printed.
Upon Mr Bothma's return,
the First Respondent signed the documents.
Later in the afternoon, the Second Respondent came home and also
signed the documents.
[12]
It is not disputed that the payment arrangement in the acknowledgment
of debt was not honoured.
[13]
Subsequent to the events of 23 May 2019, there was an occasion on
which a Mr Francois Van Pletzen,
an associate of Noordmans Attorneys,
met with the Respondents at a restaurant venue outside of Kimberley
to sign further documents.
The Respondents complied with the
request to sign such further documents.
[14]
The Respondents advanced the contentions in their papers that they
were induced by fraud and
duress to sign the documents on 23 May 2019
and to meet with Mr Van Pletzen. The First Respondent's case is
that he agreed
to sign an acknowledgment of debt, but to do so on
behalf of Lanmar, as he was not able to utilise his GWK credit
facilities.
He alleges that he was not given the opportunity to
read the documents before being forced to sign them by Mr Noordman.
He
says he was also forced to phone the Second Respondent to come
home and that she was likewise forced to sign the documents on her
arrival. According to the First Respondent, he was not informed
that he was also signing a Deed of Sale in respect of his
residential
property. Much the same goes for the subsequent meeting between
Mr Van Pletzen and the Respondents, where they
were allegedly again
not afforded the opportunity to peruse the documents before signing
them. According to the Respondents,
they verily believed the
documents to be additional only to the acknowledgment of debt.
[15]
On the other hand, it is the Applicant's case that the Respondents
agreed on 23 May 2019 to,
in addition to signing the acknowledgment
of debt, sell their residential property to him on the premise that,
if payment was not
made in terms of the acknowledgment of debt, the
Applicant would proceed to enforce the agreement of sale. In
addition to
the acknowledgment of debt binding the First Respondent
to pay, Mr Noordman also prepared a Deed of Sale which was provided
to
the Respondents. According to the Applicant the Respondents
were never under duress, were not induced by fraud, that they
had the
opportunity to peruse the documents and that they knew exactly what
they were signing.
[16]
On 5 July 2019 it was discovered that the amount owing on the
mortgage bond over the property
held by First National Bank was
R799,333.20. Later in July 2019 the rates and taxes owing to
the Sol Plaatje Municipality
was ascertained to be in the amount of
R6,381.27. The Applicant proceeded to settle the mortgage bond
and the rates and taxes
to obtain a clearance certificate from the
Municipality.
[17]
The Applicant's attorneys proceeded with the transfer and
registration of the property into his
name. On the First
Respondent's version he only became aware on 6 August 2019 that the
mortgage bond over the property had
been settled and that the
property had been transferred to the Applicant.
[18]
Needless to say, the Respondents did not vacate the property.
The Applicant never averred
that he at any stage informed the
Respondents in writing, or on any formal basis, that they were
required to vacate the property.
[19]
On 9 September 2019 the Applicant initiated the eviction application
against the Respondents
in terms of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (
"the
Act"
).
What is peculiar about the application for eviction is that the
Founding Affidavit in support of such application is very
cursory,
its contents merely meeting the requirements stipulated in Section 4
of the Act by way of allegations mostly devoid of
any substance.
The Applicant preferred not to provide much of the background
recounted above. Although this is a peculiar
feature to this
matter, I prefer not to speculate about the reasons why this course
of action was taken.
[20]
The Respondents opposed the application for eviction, and it was only
when they filed their papers
in the matter that the background
thereto was revealed. The Respondents additionally instituted a
counter-application, in
which they seek the relief that the Deed of
Sale dated 23 May 2019 whereby the property was sold to the
Applicant, be declared
null and void, and that the Registrar of Deeds
be directed and authorised to cancel the relevant Deed of Transfer.
[21]
The Respondents' papers further revealed that on 4 October 2019 the
Applicant issued summons
against the Respondents under case number
2206/19 of this Court (“
the
action
”
)
for recovery of the amount which the Applicant had paid for the
settlement of the mortgage bond in respect of the property.
I
was provided with the court file of the action at the hearing of this
matter. What must be noted from the Particulars of
Claim in the
action, as amended on 28 September 2020, are the following: the
Particulars of Claim refer to an oral agreement
concluded between the
Applicant and the First Respondent on 23 April 2019 in respect of the
sale of calves; it also refers to an
oral agreement concluded between
BN Handel and the First Respondent on 23 May 2019 at Daniëlskuil
for the sale of calves.
According to the Particulars of Claim,
it was a term of both oral agreements that the First Respondent would
pay the amount due
in terms of the respective agreements within 14
days of taking delivery of the calves.
[22]
In the adjudication of an application for eviction of an alleged
unlawful occupier, a Court must
undertake two separate enquiries.
In
casu
,
and in terms of Sections 4(6) and 4(8) of the Act, the first enquiry
is whether it is just and equitable to grant an eviction
order having
regard to all relevant factors. Once the Court decides that
there is no defence to the claim for eviction and
that it would be
just and equitable to grant an eviction order, it is obliged to grant
that order. The second enquiry relates
to what both justice and
equity demands in relation to the date of implementation of the
order.
[1]
[23]
In assessing whether the Applicant has satisfied the requirements of
Sections 4(6) and (8) of
the Act, or whether the Respondents have
managed to raise a defence against their proposed eviction from the
property, I must remark
that there are aspects on the side of both
parties which raise the proverbial eyebrow. In light of the
order I intend to
make in these proceedings, I do not consider it
prudent to list each and every concerning aspect the papers reveal,
and will therefore
confine myself to some observations and findings
which I deem relevant.
[24]
The Respondents aver that as at 2 September 2019 the realistic market
value attainable if the
property was to be sold, was the amount of
R1,380,000.00. In support of this averment, they attached a
copy of a valuation
performed by Keystone Property Consultants to
their papers. The Respondents further contend that they would
never have sold
their property willingly for an amount far below its
market value.
[25]
The problem with the evaluation report of the property is that it was
not confirmed by the professional
valuer. The Applicant took
the point in his papers that the valuation report therefore
constitutes inadmissible hearsay evidence.
If my recollection
serves, Mr Jacobs on behalf of the Applicant did not persist with
this point during the hearing. This
Court nonetheless has the
discretion in terms of Section 3(1)(c) of the Law of Evidence
Amendment Act, 45 of 1988 (
"the
Law of Evidence Act
"),
to admit this evidence if I should be of the opinion that it would be
in the interest of justice to do so.
[2]
In
applying the considerations set out in Section 3(1)(c) of the Law of
Evidence Act, it is so that this Court has not been given
a reason
why the evidence is not given by the professional valuer himself, and
that the admission of the evidence may cause prejudice
to the
Applicant. In my view however, these two considerations are
outweighed by the other considerations enumerated in Section
3(1)(c),
being: the nature of the proceedings, in that hearsay evidence may
more readily be admitted in application proceedings;
the nature
of the evidence, in that it is nevertheless a report signed by a
professional valuator which has not been gainsaid
by way of evidence
from the Applicant, and the inherent sufficient probative value of
the evidence. Another factor which
I take into consideration is
that the Applicant also responded to the Respondents' averment
regarding the market value of the property
that he denies that the
property sold for below its market value, as when calculating the
acknowledged debt together with the outstanding
bond balance, the
price for the property was much higher than market related prices.
This lastmentioned argument of course
conveniently omits the fact
that the Applicant instituted action to recoup the money paid by him
in settlement of the mortgage
bond and that he still intends to
recover such amount from the Respondents. In my considered view
therefore, the valuation
report should be admitted into evidence.
[26]
The consequence of the evidence that have been provided regarding the
market value of the property
is that it supports the contention that
the Respondents would not likely willingly part with the property if
Lanmar, or the First
Respondent, was indebted to the Applicant and/or
BN Handel in an amount of R442,543.45 less than the reasonable market
value of
the property.
[27]
The next aspect is the questionability of the invoices and the
resultant impact thereof upon
the question of the First Respondent's
liability to the Applicant and/or BN Handel. Mr Jacobs on
behalf of the Applicant
insisted that this court is not called upon
to adjudicate on the veracity of the invoices or the issues in the
action. As
a general proposition this would be correct, and it
would be wrong of this Court to, at this stage, make findings
regarding issues
that might still be addressed in the action.
However, this Court is called upon to decide whether it is just and
equitable
that the Respondents be evicted from their home, and if the
invoices, or rather the questionability of the invoices, is raised as
part of a respondent's defence in an eviction application, it would
be equally wrong for the Court to merely turn a blind eye thereto.
[28]
The Applicant failed to provide a copy of the invoice in respect of
the transaction of 23 April
2019 in its papers
in
casu
.
This invoice had to be found in the annexures to the summons in the
action. It appears to be an invoice issued by
the Applicant to
Lanmar Verskaffers on 23 April 2019, and has an entry written in
manuscript at the bottom thereof stating "
To
Pay, Martin Vos
",
along with a signature underneath such entry. Then, the
purported invoice, which the First Respondent averred he was
forced
to issue, is a handwritten tax invoice produced from a proforma
source document or book, made out by Lanmar Verskaffers
on 23 May
2019 to "BN Algemeen", again with a manuscript entry at the
bottom thereof, stating "
Vos
To Pay
",
and with a signature above such entry. This lastmentioned
invoice seems highly questionable, as it clearly runs counter
to the
way both parties allege the transactions were conducted.
Whoever the party on either side was, Lanmar or the First
Respondent
was never alleged to be the supplier of cattle, and BN Handel was
never alleged to be the livestock broker. It
must also not be
forgotten that in the action, the Applicant alleges that an oral
agreement was concluded at Daniëlskuil on
23 May 2019 between BN
Handel and the First Respondent. Contrary thereto,
in
casu
,
the Applicant has stated that he first was at a farmers' day on 23
May 2019 (where the First Respondent was not present) and thereafter
at the First Respondent's home for a large part of the rest of the
same day. These two versions of the Applicant are contradictory
and mutually exclusive, and raises suspicions whether the purported
invoice constitutes a document properly evidencing liability
by the
First Respondent toward BN Handel. Furthermore, even if a
transaction took place on 23 May 2019, on the Applicant's
version in
the action, payment in respect of such transaction would only have
become due before or on 14 days following such transaction.
Therefore, the debt which is purportedly evidenced by the alleged
invoice of 23 May 2019 would not have been due by 30 May 2019.
[29]
On the side of the Respondents, the Respondents elected not to seek
leave to file a Supplementary
Affidavit in the application for
eviction, or to file a Replying Affidavit in the
counter-application. This left some pertinent
averments
regarding the Respondents' conduct post the signing of the documents
on 23 May 2019 unexplained. This has made
this Court's task all
the more difficult and was a major cause for concern regarding the
veracity of the Respondents' version.
[30]
I am left with the dispute of fact about the question whether the
documents signed by the Respondents
were entered into under the
influence of fraud and duress, or whether they were freely and
voluntarily entered into. Mrs
Erasmus on behalf of the
Respondents submitted that the application for eviction should be
dismissed, and the counter-application
referred to oral evidence, as
the factual disputes cannot be resolved on the papers.
[31]
It is trite that, although it is generally undesirable, and often
impossible, to decide factual
disputes on the papers alone, there may
be instances in which a Court should adopt a robust approach and
where disputes of fact
must be decided on the papers in order for
justice to be done.
[3]
Furthermore, although it is also trite that it would usually be
undesirable for a Court to attempt, in motion proceedings
and based
on evidence on affidavit, to make findings based on probabilities, I
still had to consider whether
in
casu
perhaps
either of the parties' versions were not improbable to such an extent
that it could only be considered as palpably implausible,
far-fetched
or clearly untenable.
[4]
[32]
This being said, I find that in this matter I cannot simply adopt a
robust approach in order
to adjudicate the factual disputes between
the parties. The Respondents' affidavit did at least disclose
that there are material
issues in which there is a
bona
fide
dispute
of fact capable of being decided only after
viva
voce
evidence
has been heard.
[5]
I
believe that it would be just and equitable in the circumstances to
allow the Respondents the opportunity to adduce
viva
voce
evidence
on the issues of the alleged fraud and/or duress which, if
established, would constitute a valid defence against the application
for their eviction. The Applicant should equally be given an
opportunity of answering the case advanced by the Respondents.
[33]
In terms of Uniform Rule 6(5)(g) this Court is afforded the power to
make such order as it deems
fit with a view to ensuring a just and
expeditious decision. The orders that I make are informed by
such power and considerations.
[6]
In
the premise the following orders are made:
[1]
The application for the eviction of the Respondents from Erf [....],
Kimberley, also
known as [….] M[....] Street, Kimberley, is
stayed pending the final adjudication of the oral evidence on the
Respondents'
counter-application as provided for below.
[2]
The Respondents' counter-application is referred for the hearing of
oral evidence,
at a time to be arranged with the Registrar, on the
question whether the agreement of sale in respect of Erf [....],
Kimberley,
dated 23 May 2019 should be declared null and void as a
result of fraud and/or duress.
[3]
The evidence shall be that of the First and Second Respondents and
the Applicant,
as well as any witnesses whom the parties or either of
them may elect to call, subject, however, to what is provided in
paragraph
4 hereof.
[4]
Save in the case of the First and Second Respondents and the
Applicant, neither party
shall be entitled to call any witness
unless:
(a)
he or she has served on the other party at least 14 days before the
date appointed for the hearing (in
the case of a witness to be called
by the Respondents) and at least 10 days before such date (in the
case of a witness to be called
by the Applicant), a statement wherein
the evidence to be given in chief by such person is set out; or
(b)
a court, at the hearing, permits such person to be called despite the
fact that no such statement has
been so served in respect of his/her
evidence.
[5]
Either party may subpoena any person to give evidence at the hearing,
whether such
person has consented to furnish a statement or not.
[6]
The fact that a party has served a statement in terms of paragraph 4
hereof, or has
subpoenaed a witness, shall not oblige such party to
call the witness concerned.
[7]
Within 21 days of the making of this order, each of the parties shall
make discovery,
on oath, of all documents relating to the issues
referred to in paragraph 2 hereof, which are or have at any time been
in the possession
or under the control of such party. Such
discovery shall be made in accordance with Uniform Rule 35 and the
provisions of
that rule with regard to the inspection and production
of documents discovered shall be operative.
[8]
The costs of the application for eviction are to stand over for later
determination.
[9]
The costs of the counter-application are to be determined in the
hearing of oral evidence
envisaged above.
EILLERT,
A
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
KIMBERLEY
For
the Applicant: Adv.
F.F. Jacobs
Instructed
by:
Van
de Wall Inc.
BH/lg/M05634
For
the Respondents:
Adv.
S.L.
Erasmus
Instructed
by:
Engelsman,
Magabane Inc.
FEngelbrecht/VOS21/0001
[1]
See:
CITY
OF JOHANNESBURG vs CHANGING TIDE 74 (PTY) LTD AND 97 OTHERS (THE
SOCIO-ECONOMIC RIGHTS INSTITUTE OF SOUTH AFRICA INTERVENING
AS
AMICUS CURIAE
[2012] ZASCA 116
(14 September 2012)
[2]
Section
3 of the Act provides:
"(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted
as evidence at criminal or civil proceedings,
unless-
(a)
each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such
proceedings;
(b) the
person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings;
or
(c)
the court, having regard to-
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative
value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into account, is of the opinion that
such evidence should be
admitted in the interests of justice.
(2)
The provisions of subsection (1) shall not render admissible any
evidence which
is inadmissible on any ground other than that such
evidence is hearsay evidence.
(3)
Hearsay evidence may be provisionally admitted in terms of
subsection (1) (b) if
the court is informed that the person upon
whose credibility the probative value of such evidence depends, will
himself testify
in such proceedings: Provided that if such person
does not later testify in such proceedings, the hearsay evidence
shall be left
out of account unless the hearsay evidence is admitted
in terms of paragraph (a) of subsection (1) or is admitted by the
court
in terms of paragraph (c) of that subsection.
(4)
For the purposes of this section –
•
'hearsay
evidence' means evidence, whether oral or in writing, the probative
value of which depends upon the credibility of any
person other than
the person giving such evidence;
•
'party'
means the accused or party against whom hearsay evidence is to be
adduced, including the prosecution."
[3]
See:
SOFFIANTINI
vs MOULD
1956(4)
SA 150 (E) at 154 G – H;
BUFFALO
FREIGHT SYSTEMS (PTY) LTD vs CRESTLEIGH TRADING (PTY) LTD AND
ANOTHER
2011(1) SA 8 (SCA) at
paragraph [19]
[4]
Compare:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS vs ZUMA
2009(2) SA 277 (SCA) at paragraph [26]
[5]
ROOM-HIRE
CO. (PTY) LTD vs JEPPE MANSIONS (PTY) LTD
1949(3) SA 1155 (T) at p. 1165
[6]
It
was my intention to deliver this judgment without delay.
However, due to circumstances beyond my control, the judgment
has
taken much more time than was anticipated. I sincerely regret the
delay.