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[2021] ZALMPPHC 37
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Mapungubwe Game Reserve and Another v Small (7861/2020) [2021] ZALMPPHC 37 (2 February 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 7861/2020
In
the matter between:
MAPUNGUBWE
GAME RESERVE
FIRST
APPLICANT
(Registration
Number 200[…])
LEIF
ERIC RAHMQVIST
SECOND
APPLICANT
and
EUGENE
SMALL
RESPONDENT
(Identity
Number: 6[…])
JUDGMENT
MAKGOBA
JP
[1]
The Applicant brought an urgent application against the Respondent
for an order in the following
terms:
1.
The application is
dealt with in accordance with the provisions of Rule 6 (12) as
urgent, thus dispensing of the normal time limits
as provided for in
Rule 6 of the Uniform Rules of Court:
2.
Pending finalisation of
an action in this Court with case number 5016/2019 between First
Applicant and Respondent,
alternatively
the lapsing of a
disputed lease agreement (and its addenda) between the First
Applicant and Respondent on 31 May 2022, whichever
comes first
2.1.
The Respondent is
ordered NOT to interfere (in any manner whatsoever) with any of
Second Applicant’s right pertaining to hunting
activities,
inspection and visitation of and to the First Applicant’s game
farms in Limpopo Province, Alldays District, to
wit Modina, Pindrift,
Onrust, Kruidfontein, Vergenoed, Wildpan, Parma, Princess Royal,
Montrow and Sommerville
2.2.
The Respondent is
orded, as and when necessary, to accommodate and safely co-ordinate
Second Applicant’s and / or guests’
hunting trips,
inspections and visitation to the First Applicant’s farms.
3.
That the Respondent be
ordered to pay the costs of the application on a scale as between
attorney and client, including the cost
consequent upon the
employment of both junior and senior Counsel.
4.
Further and / or
alternative relief.
[2]
The purpose of this urgent application is essentially to obtain
urgent interim interdictory relief
in terms whereof the Respondent is
ordered NOT to interfere with any of Second Applicant’s hunting
activities, inspection
and visitation of and to the game farm,
pending finalization of a pending action in this Court with case
number 5016/2019, between
First Applicant and Respondent,
alternatively the lapsing of an agreement between the First Applicant
and Respondent on 31 May
2022, whichever comes first. The Second
Applicant seeks, pending the finalization of the main action, an
interim interdict giving
him the right to partake in recreational
hunting on the properties which have been leased to the Respondent.
[3]
The urgent relief is premised on the fact that Applicants will not
attain redress in the normal
course of events in the opposed motion
Court before March / April 2021. The Applicants allege that the
Respondent was properly
notified of such reserved time period but
Respondent bluntly denied any rights of Second Applicant to hunt or
inspect First Applicant’s
game farm.
[4]
It is common cause that in June 2012 the First Applicant entered into
a lease agreement in terms
whereof the First Applicant let to the
Respondent game farms for a period of 9 (nine) years and 11 (eleven)
months commencing from
1 July 2012 and coming to an end on 31 May
2022.
[5]
A dispute has arisen between the parties where the Second Applicant
states that he has hunting
rights on the leased game farm and on the
other hand the Respondent disputes such hunting rights and avers that
he has in the past
only granted the Second Applicant an indulgence to
hunt on the game farm. That the Second Applicant has no right in
terms of the
lease agreement to hunt on the game farm.
There is no dispute that
the Respondent has at all times relevant hereto allowed the Second
Applicant to enter the game farm for
visitation with the purpose of
inspecting the leased farms as stipulated in the lease agreement.
[6]
In essence, this Court must decide two issues;
6.1.
Whether this application is urgent; and
6.2.
Whether the lease agreement permits the Second Applicant, his
friends, family, clients and business associates
and that of his
companies to hunt upon the leased game farms.
[7]
In opposing the application the Respondent contends that the
application is not urgent and it
does not justify that it be heard on
such an extremely urgent basis. That there is no “blood on the
wall” nor has irreparable
harm been illustrated – on the
contrary the dispute appears to have come over a number of years. The
Respondent contends
further that the Founding Affidavit does not even
contain a proper inference of facts which would amount to true
urgency.
The contention of the
Respondent is further that the Applicants have alternative remedies
and that the balance of convenience is
against them.
See
Sikwe v SA Mutual
Fire & General Insurance Co Ltd
1977 (3) SA 438
(W)
at
440
The Respondent contends
that the application can, for present purposes, be disposed of on the
point
in limine
raised by the Respondent in respect of the
lack of urgency.
[8]
I proceed to deal with the issue of urgency, and only in the event of
my finding that the application
is urgent, I shall proceed to deal
with the merits of the case.
[9]
First and foremost it is appropriate to introduce the relevant
parties to this matter and their
respective roles in this matter:
9.1.
The First Applicant is a juristic person (a company) that is the
owner of various portions of land situated
in the Limpopo province,
constituting approximately 25 000 hectars of game farm property.
9.2.
The Second Applicant is the sole director of and 100 % shareholder in
the First Applicant, a businessman
residing in Europe (Sweden) with
various business associates from European based companies.
9.3.
The Respondents cites himself as an adult businessman, registered as
a professional hunter and hunting outfitter.
It is further common
cause between the parties that at this stage the Respondent resides
and conduct his business as professional
hunter and hunting
outfitter on the game farm property owned by the First Applicant.
The legal nexus between
the parties arises from a lease agreement that was concluded in June
2012, amended in April 2015 and again
in January 2016. In essence,
the lease agreement stipulated the terms of use of the game farm
property on part of the Respondent
(commercial hunting and ancillary
use associates therewith) and the concomitant remuneration that the
Respondent must pay to the
First Applicant for said use. Respondent’s
hunting was, however limited to a quota of various types of wild
animals and a
specific number at a price.
[10]
As a basis for urgency the Applicants rely on a letter dated 17
November 2020 from Respondent’s attorneys,
which letter they
refer to as a “trigger event”. The said letter was
received in reaction to a letter from the Applicants’
attorneys
in respect of the hunting rights and occupancy rights arising from
the lease agreement.
The responding letter
from Respondent’s attorneys dated 17 November 2020 stated that
“…
..our
clients instructions are and always have been that your client was
accommodated by our client and that, even though your client
had no
right to hunt on the properties, our client allowed him to do so on
due notice and on dates that would not affect our client’s
hunting activities. However, since your client’s various
repudiations of the agreement, our client is no longer prepared
to
tolerate any further hunting by your client….. your client has
no right to hunt on the properties
”
.
[11]
The Second Applicant states that it is the said indication that the
Second Applicant had no right to
hunt on the game farm property
which prompted the institution of the present urgent application. The
present urgent application
was instituted on 14 December 2020.
Irrespective of the “trigger event ” on 17 November 2020,
the institution of the
urgent application was delayed by a full
month. The Respondent contends that this demonstrates that the
application is not urgent
or that the urgency is self created.
[12]
The Respondent has countered the allegation that the letter of 17
November 2020 was a “trigger event”.
The Respondent
contends that the statement that he has exclusive right to hunt was
made already as far back as in his attorneys
letters of 1 October
2019 (attached as annexure AA7 to the answering affidavit) and of 17
June 2020(attached as annexure AA14 to
the answering affidavit).
Therefore, the alleged “trigger event” occurred more
than a year before the present
application. The reapeat of the
statement on 17 November 2020 does not again give rise to any
contorted form of urgency.
[13]
The contents of annexures “AA7” and “AA14”
are as follows.
On 1 October 2019 in a
letter (Annexure AA7) Respondent’s attorneys stated that
“
Once
again we wish to stress that all hunting rights on the property have
been ceded(sic) to our property and that our client conducts
safari
operations thereon
”
On 17 June 2020 (Annexure
“AA14”) it was again stated:
“
Our
client has the exclusive right to hunt on the property and any
attempt by your client to interfere with our clients business
shall
be met with an interdict”
This is more than a year
before this application was instituted on 14 December 2020.
[14]
Between the versions of Applicants that the trigger event is the
letter dated 17 November 2020 and the Respondent’s
version that
the statement that he has exclusive right to hunt was made already as
far back as on 1 October 2019, and 17 June 2020,
I accept the version
of the Respondent. The Respondent’s version is cogent and
acceptable moreso that it is supported by
the two letters attached as
annexure to the answering affidavit.
It is abundantly clear
from the correspondence exchanged between the parties and in fact
from the Applicants’ own version
that the disputes have been in
existence for a very long period of time.
[15]
On the Applicants’ own version that the “trigger”
to the present application is a letter
dated as far back as 1
November 2020 and also on the version of the Respondent regarding the
letters dated 1 October 2019 and 17
June 2020, I come to a conclusion
that this matter is not urgent, regard being had to the fact that the
Applicants instituted the
present proceedings on 14 December 2020.
[16]
The Second Applicant states that he wishes to exercise his hunting
rights and has planned to hunt during
March/ April 2021. The second
basis of urgency is stated in paragraph 18.7 of the founding
affidavit where the Second Applicant
stated that he is 78 years old
and “
although fit and medically healthy”
he is
“
acutely aware that I may not have many opportunities left
to exercise all my ownership rights in respect of the game farms “.
The loss of a hunting
opportunity on the leased premises can never be said to amount to
true urgency or to the suffering of irreparable
harm.
Even the loss of some
sort of recreational activity can hardly be said as being urgent.
[17]
The Second Applicant wants to hunt in March/April 2021. According to
him if this application waits he will
be inconvenienced as the matter
may not be heard in time for him to make arrangements. The urgency is
based upon the inconvenience
which the Second Applicant may suffer if
he has to wait for the normal opposed roll to enforce his right to
hunt on the farms which
the First Applicant leased to the Respondent.
In my view what is at best inconvenience can never amount to urgency.
[18]
The highwater mark of urgency in this matter is that the Second
Applicant does not want to wait for the finalisation
of this
application on the normal roll as it may interfere with his hunting
trip which he plans for March/April 2021. The Second
Applicant
creates a false impression that he needs to have clarity to apply for
a visa, but is caught out as already having a valid
visa. This
militates against this Court granting any indulgence concerning
urgency in the matter. In any event, the relief
sought by the
Applicants in this matter is not necessary to be able to apply or
obtain tourism visa’s. The Second Applicant
is simply creating
a false impression of some spectre of urgency existing when there is
none.
[19]
Rule 6 (12)(b) of the Uniform Rules of Court provides:
“
In
every affidavit or petition filed in support of any application under
paragraph (a)of this subrule, the applicant shall set forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not be afforded
substantial redress at a hearing in due Course”.
Upon perusing the
Applicants’ Founding Affidavit, my view is that same does not
contain explicit circumstances which they
aver render the matter
urgent or a proper inference of facts which amount to true urgency.
The importance of the provisions in
Rule 6(12)(b) is that the
procedure set out in Rule 6(12) is not there for the mere taking.
[20]
Notshe AJ said in
East Rock Trading 7(Pty) Ltd and Another v Eagle
Valley Granite (Pty) Ltd and Others [2011] ZAGPJHC 196
as
follows:
“
[6]
The import thereof is that the procedure set out in rule 6(12) is not
there for the taking. An Applicant
has to set forth explicitly the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state
the reasons why he claims that
he cannot be afforded substantial redress at a hearing in due course.
The question of whether a
matter is sufficiently urgent to be
enrolled and heard as an urgent application is underpinned by the
issue of absence of substantial
redress in a application in due
course. The rules allow the court to come to the assistance of a
litigant because if the latter
were to wait for the normal course
laid down by the rules it will not obtain substantial redress.
[7]
It is important to note that the rules require absence of substantial
redress. This is not equivalent
to the irreparable harm that is
required before the granting of interim relief. It is something less.
He may still obtain redress
in an application in due course but it
may not substantial. Whether an applicant will not be able to obtain
substantial redress
in an application in due course will be
determined by the facts of each case. An applicant must make out his
case in that regard.”
[21]
The present application is not urgent and it does not justify that it
be heard on an urgent basis. The matter
falls to be struck off the
roll.
I have not dealt with the
merits of the case.
The Applicants are at
liberty, if so advised, to proceed with the matter at a hearing in
due course in the opposed motion roll.
[22]
The application is struck off the roll with costs on party and party
scale.
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
For
the Plaintiff
:
Adv. J Roux SC
Adv.
CGVO Sevenster
Instructed
by
:
Erwee Incorporated
c/o
DDKK Attorneys
For
Defendant
:
Adv. RJ Groenewald
Instructed
by
:
Joubert & May
c/o
Kampherbeek & Pogrund Attorneys
Heard
on
:
26 January 2021
Judgment
delivered on
:
2 February 2021