About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2021
>>
[2021] ZALMPPHC 51
|
|
Leopont 461 CC and Another v Ringane and Others (3633/2021) [2021] ZALMPPHC 51 (1 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO:
CASE NO: 3633/2021
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
In
the matter between:
LEOPONT
461 CC
:
1
ST
APPLICANT
(Registration
number: 2010/05451/23)
ANDREW
IVAN COCKS
:
2
ND
APPLICANT
And
DR
LINDIWE RINGANE
:
1
ST
RESPONDENT
INZUVECT
(PTY) LTD
:
2
ND
RESPONDENT
ABSA
BANK LIMITED
:
3
RD
RESPONDENT
(Registration
number 1986/004794/06)
THE
SHERIFF OF THE HIGH COURT,
:
4
TH
RESPONDENT
POLOKWANE
JUDGMENT
SEMENYA
ADJP:
[1]
The applicants launched this application in two parts. In Part A, the
applicants seek the immediate restoration of two properties,
namely:
PORTION 1 OF THE FARM
[…………],
REGISTRATION DIVISION
LS, LIMPOPO PROVINCE,
IN EXTENT 17, 1306
HECTARES
And
THE FARM [……..],
REGISTRATION DIVISION
LS, LIMPOPO PROVINCE
IN EXTENT 67,3206
HECTERES
The applicants further
seek an order in terms of which the respondent are interdicted from
trespassing the two properties in any
manner, directly or indirectly.
There are other further ancillary orders sought by the applicants,
which includes the order that
the 3
rd
respondent is to
immediately freeze a total of an amount of
R165 000.00
(ONE
HUNDRED AND SIXTY-FIVE THOUSAND RAND). The application in Part A is
to be heard pending the determination of the issues raised
in Part B.
[2]
This application initially served before the Regional Court Tzaneen
on an urgent basis on the
20 May 2021
. The matter was struck
off the roll on the
26 May 2021
after the Regional Court
upheld the 1
st
and 2
nd
respondents’ point
in limine
of the court’s lack of jurisdiction. Pursuant
to that, the applicants approached this Court, again on an urgent
basis, as
the Court which has jurisdiction to hear the matter. The
deponent to the founding affidavit is Daniel Petrus Uys Coetzer who
alleges
that he is a lawful agent of the applicants in terms of the
General Power of Attorney given to him by Andrew Ivan Cocks, in his
personal capacity, as well as his capacity as sole member of the 1
st
applicant. The said power of attorney is registered in the Deeds
Office, Pretoria under PA 179/2020. He attaches proof of
these
averments as Annexure “A”.
[3]
The 1
st
and 2
nd
respondents’ (who shall
hereinafter be referred to as the respondents) unopposed application
for condonation for the late
filing of the answering affidavit is
granted. The reasons advanced in that regard are accepted. The
respondents raised four
points
in limine
to the applicants’
affidavit. Firstly, the respondents contended that the application
stands to fail on account of misdescription
involving citation of the
applicants. The respondents aver that CIPC search revealed that there
is no entity known as Leopont 461
CC with Registration Number
2010/054514/23 and Leopont 461 (Pty) Ltd, Registration Number
2010/054514/23. The respondents
aver that the CIPC revealed the
entity known as Leopont 461 Properties
(Pty) with registration
numbers 2002/021268/07. It is further stated
that the directors of Leopont 461 (Pty) Ltd 2002/021268/07 are Lynne
Cocks and Rosaline
Frances van Wyk and that neither of the two has
been cited as a party to these proceedings. In support of this
contention the respondents
have attached CIPC search report as
annexure “AA4” to the answering affidavit.
[4]
The applicant contended that the first point
in limine
is
without merit. On Annexure “AA4,” Leopont 461 Properties
is registered under Registration Number 2010/054514/23,
which is
similar to the registration number which is reflected in the founding
affidavit. Furthermore, it is indicated on Annexure
“AA4”
that Leopont 461 was initially registered as a company but was later
converted into a Close Corporation, with
Cocks, Andrew Ivan as its
Representative Trustee. The word “Properties” as they
appear in Annexure “AA4”
has been omitted in the heading
and paragraph 3.1 of the founding affidavit and the heading thereto.
The applicants have however
conceded that the citation of the
applicant is therefore erroneous, but submitted that misdiscreption
does not render the application
a nullity.
[5]
Counsel for the applicants referred this court to the decision in
HUV
CAPE SPICE v HOT SPICE SAUCES CC (Western Cape Division unreported
case No. 22227/2010 (10 May 2011) at [12]
in which Louw J said
the following:
“
In my view the
contentions on behalf of the respondent is based on a fallacy. The
description of a party to a suit does not immutably
determine the
nature and identity if a party. The law reports are replete with
instances where the incorrect description of a party
was allowed, in
the absence of prejudice to other parties involved, to be changed to
reflect the true state of affairs. See for
instance,
Four
Tower
Investments (Pty) Ltd v Andre’s
Motors
2005 (3) SA 39
(NPD
). In an
action in a magistrates’ court which went on appeal to the High
Court, the plaintiff was cited in the summons as
a company. Shortly
before the hearing of the appeal, it was established that the
plaintiff was in fact a close corporation. The
plaintiff then asked
for an amendment on appeal to change the citation of the plaintiff
from that of a company, to a close corporation.
The defendant
resisted the application for the amendment on the basis that since
the plaintiff as cited was a non-existent entity,
the summons was a
nullity and that in any event, the service of the summons, not having
been issued and served at the instance
of the plaintiff as a close
corporation, even if the summons were not a nullity, did not
interrupt prescription. On the evidence
which showed that it was a
close corporation which had acted throughout, and that the citation
was in fact nothing but a misdescription
of the plaintiff, the
amendment was allowed. At 47E it was held that:
[29]…if the
citation of a party is nothing more than a misdescription, it should
not matter whether the incorrect citation
happens on the face of it
to refer to a non-existing entity or indeed to an existing but
uninvolved entity.”
[6]
It appears clearly from the answering affidavit that the respondents
are not denying that they have entered into agreements
which forms
part of the subject matter of this application. By way of an example,
the respondents have stated in paragraph 13.3
of the answering
affidavit that the applicants have consented to the felling of the
timber and have attached a letter written by
the applicant’s
attorneys, Charl Naudé, in confirmation thereof. The
respondents furthermore contend that they have
the right to be on the
properties and that they have continued to do business on the
properties. Counsel for the applicants contended
that the assets,
rights, liabilities and obligations of the Leopont 461 Properties
company vested in the close corporation upon
conversion as envisaged
in section 27(5)(a) of the Close Corporation Act No. 69 of 1984. In
line with the decision in HUV Cape
above, I find that the respondents
will in no way be prejudiced by the misdescription of the applicants
on the basis of the common
cause facts between the parties. This
point in limine stands to be dismissed.
[7]
The second point
in limine
is that deponent to the founding
affidavit has no
locus standi.
The applicants correctly stated
that the proper way to challenge a person’s authority to act is
as prescribed in Rule 7.
The respondent s chose to ignore this
procedure. Furthermore, as already stated, it appears from the
General Power of Attorney
that it is Andrew Ivan Cocks who has
nominated, constituted and appointed the deponent to the founding and
replying affidavit as
his lawful agent. Andrew Ivan Cocks is the
Representative Trustee of Leopont 461 CC. This point
in limine
stands to be dismissed.
[8]
In the third point
in limine
, the respondents contended that
the applicant failed to make out a cause of action in the
application. The respondents contend
that the applicants failed to
state how they became owners of the properties as well as the timber
thereon. The respondents contended
that the applicants failed to
disclose the relationship between the applicants and Leopont 461
(Properties) CC, Leopont 461 (Properties)
(Pty) Ltd and Mikelbe Cocks
Family Trust. The applicants explained the contents of Annexure “AA4”
attached to the answering
affidavit in relation to section 27 of the
Close Corporation Act in their replying affidavit. explains the
issues raised in this
point
in limine
. The explanation was
accepted by this Court in the preceding paragraphs. Furthermore, the
applicants’ submission that the
respondents do not deny that
they have entered into the agreements with the applicants. This point
in limine
is therefore dismissed.
[9]
On the point
in limine
of lack of urgency, the respondents
correctly stated that the applicants failed to succinctly state the
reasons why this matter
deserved to be heard as a matter of urgency.
It would appear that the Regional Court magistrate did not deal with
this aspect.
The application in that Court was struck off the roll
for want of jurisdiction. The applicants in this Court reiterated
that the
matter is urgent in that on the
11 May 2021
the
respondents continued to sell timber to an entity known as Diggers
Rest Timbers without the 2
nd
applicant’s consent and
despite the alleged cancellation of the agreements that existed
between the parties (more of this
will appear later in this
judgment). The respondents contended that the timber was sold with
Charl Naudé’s consent
as expressed in a letter dated the
19 November 2020
. The applicants contended that the letter
predated the cancellation of the agreement between the parties. I
agree that the respondent
had no right to fell the trees as at the
11
May 2021
and I have for that reason, and for the prejudice that
may result should the respondents persist in their conduct, agreed to
attend
to the matter on the urgent basis.
[10]
On the merits of this application, it is common cause that on the
19
November 2020
, the 1
st
applicant and the 1
st
respondents entered into a written Deed of Sale of Members interest
in the 1
st
applicant, being the owner of the properties
mentioned in paragraph 1 above. The said deed of sale is attached to
the founding
affidavit as Annexure “D”. Attached to
Annexure “D”, as Annexure “A”, is a Lease
Agreement
entered into by the 1
st
applicant and the 1
st
respondent in respect of the same properties. The terms of the
agreement were, among others, that the 1
st
respondent will
rent the properties from the applicant with effect from 1 November
2020 in terms of the Lease Agreement attached
to the Sale Agreement.
The 1
st
respondent was required to pay a non-refundable
deposit of
R1 000 000.00
into the trust account of
Charl Naudé Attorneys within three months from the date of
signature of the sale agreement.
[11]
In terms of the lease agreement, the 1
st
respondent is
allowed to utilise all residential properties to her own benefit and
is entitled to all income deriving therefrom.
All vacant and unused
portions of the properties were made available to the 1
st
respondent for the purposes of grazing cattle, growing of cash crop
and development of properties for the production of avocado
and/or
macadamia nut inclusive of installation of infrastructure of whatever
nature required for such activities. The 1
st
respondent
was however prohibited from harvesting any of the trees which were
currently on the properties.
[12]
On the same date (
19 November 2020
), the 2
nd
applicant
and 2
nd
respondent, duly represented by the 1
st
respondent entered into an agreement of Sale of Standing Timber for
the purchase price of
R2 800 000.00
. The 2
nd
applicant retained ˊownership of the property and the timber
thereon. As in the lease agreement, the 2
nd
respondent is
prohibited from harvesting standing timber on the property without
the written consent by the 2
nd
applicant. All proceeds of
the sale of the standing timber felled with the 2
nd
applicant’s consent will have to be paid into the trust account
of Charl Naudé Attorneys Trust account, to the benefit
of the
2
nd
applicant in the reduction of the purchase price. The
2
nd
respondent was prohibited from selling, ceding,
assigning, transferring, pledging the standing timber or from
allowing it to become
subject to lien of whatsoever nature or to
deliver possession thereof to any other person while any other
portion of the purchase
price remains unpaid.
[13]
The applicants aver that the 1
st
respondent breached the
agreement in that she paid only
R500 000.00
towards the
deposit instead of paying
R1 000 000.00
. In view of
this breach, the 1
st
applicant informed the 1
st
respondent on the
24 March 2021
that the agreement has been
tcancelled. The 1
st
applicant demanded the return of the
properties pursuant thereto. The cancellation letter followed on the
7 April 2021
. The applicants aver that the 1
st
respondent is further in breach of the lease agreement in that she
failed to pay the rental in the amount of
R29 000.00
per
month for the month of
February, March, April and May 2021
, as
agreed upon as well as municipal and electricity charges. The 1
st
applicant have subsequently cancelled the lease agreement.
[14]
With regard to the sale of Standing Timber Agreement, the 2
nd
applicant avers that the respondents breached the agreement by
entering into an agreement with FNR Timber in terms of which FNR
Timber was to fell two hectares of trees in compartment LF007 without
consent and by receiving a deposit of
R150 000.00
in cash
from Fritz Sontag of FNR Timbers and failed to transfer the amounts
received from FNR Timbers into the Trust account of
Charl Naudé
Attorneys despite demand. The 2
nd
applicant subsequently
cancelled/terminated the agreement by way of a letter dated the
24
March 2021
. The 1
st
and 2
nd
respondents
remains on the property despite the alleged cancellation of the
agreement.
[15]
Inspite of the cancellation of the agreements, the 1
st
,
alternatively 2
nd
respondents did, on the
27 April
2021
, enter into an agreement to sell the standing timber on the
properties described as LF004 to an entity known as Diggers Rest
Timber
company without the 2
nd
applicant’s consent.
1
st
, alternatively 2
nd
respondents have also
sold timber to Selati Timbers without the applicants’ consent.
In a letter dated the
21 April 2021
, the attorney for the 1
st
and 2
nd
respondents addressed a letter to the applicants
in which they are informed that they are not accepting the
cancellation of the
agreements and will not handover the keys. In an
email from the 1
st
respondent dated the
6 April 2021
and addressed to the 2
nd
applicant, the 1
st
respondent concedes that things have not been going well from her
side and that she has been unable to fulfill her expected financial
commitments and promised to pay rental to Mr Naude. She further
promised to sort out the issue of the felling of trees. She
acknowledged
that she failed to fulfill the terms of the agreement in
the last two months and to settle the purchase price.
[16]
The applicants aver that the launch of this application on an urgent
basis was triggered by the information received on the
11 May 2021
that the respondents were selling standing timber to Diggers Rest
Timbers Company. It is further stated that attempts to resolve
the
issue by, among others, sending a letter to the respondents on the
12
May 2021
, did not yield any success. In response to the letter
requiring an assurance from the respondents that no further felling
or selling
of timber will take place, the respondents referred the
applicants to the letter dated the
19
November 2020
,
referred to above, which authorised the respondents to fell the
trees. The respondents further indicated that they will vigorously
oppose any application the applicants may intend to launch.
[17]
The applicants contend that the respondents are selling timber which
is not yet ready for the market, thereby diminishing the
value of the
properties to the detriment of the applicants. Apart from the sale
and felling of trees, the applicants contends that
the application is
urgent in that the 2
nd
applicant has learnt on the
24
May 2021
that the 1
st
respondent, alternatively the
2
nd
respondent have unlawfully sold a Toyota Land Cruiser
to Jacque Nel. The said Jacque Nel has deposed to a confirmatory
affidavit.
I however agree with the 1
st
respondent that
there is no description of the motor vehicle which was allegedly sold
to Mr Nel on the documents filed in support
of the allegations. I
therefore reject the allegation that the respondents sold the Toyota
Land Cruiser to Mr Nel.
[18]
The respondent s contended that the balance of convenience favours
the dismissal of the application in that the respondents
have already
entered into agreements with certain developmental institutions,
among others, University of Venda, in relation to
the properties. The
respondents failed to attach confirmatory affidavits of the said
institutions in that regard. It is not clear
what irreparable harm
the respondents will suffer if the application is granted. The
agreements between the parties have been cancelled
already. On the
issue of relief in due cause, the applicants contended that the
continuance of felling of trees which are younger
than
25 years
old
will cause more harm to the applicants and therefore the
court should grant the remedy as prayed for now rather than later. I
am
satisfied that the applicants have established the requirements
for an interim interdict as laid down in
Setlogelo v Setlogelo
1914 AD 221
and are entitled to the relief sought in terms of the
notice of motion.
[19]
It is therefore ordered:
1.
The applicants’ non-compliance with the rules of this Court is
condoned and the matter is heard
as urgent in terms of Rule 6(12) of
the Uniform Rules of Court;
2.
Pending the determination of the application for the relief in Part B
hereof, an interim interdict is
issued, in the following terms: -
2.1 The 1
st
applicant’s possession of the farms known as:
PORTION 1 OF THE FARM
[……….],
REGISTRATION DIVISION
LS, LIMPOPO PROVINCE,
IN EXTENT 17. 1306
HECTARES
And
THE FARM […………..],
REGISTRATION DIVISION
LS, LIMPOPO PROVINCE
IN EXTENT 67.3206
HECTARES
(herein after referred to
as “the properties”)
be restored immediately;
2.2
The 1
st
and 2
nd
respondents are interdicted
from trespassing the properties, in any manner, directly or
indirectly;
2.3
The 1
st
and/or 2
nd
respondents are interdicted
from removing and/or damaging the properties, the tree plantation,
the any other trees, the buildings
and/or the fence on the properties
and/or erected on and around the properties;
2.4
The 1
st
and/or 2
nd
respondents are interdicted
from burning and/or damaging and/or hunting any livestock and/or wild
game, and/or letting any of the
1
st
respondent livestock
and/or wild animals graze on or enter the property;
2.5
The sheriff of the High Court of South Africa, Polokwane (4
th
respondent), is authorized to immediately serve this court order on
the 1
st
and 2
nd
respondents;
2.6
The 4
th
respondent is authorized to immediately serve this
court order on the 1
st
and 2
nd
respondents by
handing the 1
st
respondent a copy of the order and/or
affixing a copy of the order to the main entrance of the property, as
well as by serving
a copy of this order on the 1
st
and/or
2
nd
respondent’s Polokwane correspondent Attorneys
of record;
2.7
The 4
th
respondent is authorized to see to the removal
and/or return of any movable property removed from the said
properties and/or on
the said properties, as well as the removal of
the 1
st
respondent and/or the 1
st
and/or 2
nd
respondent’s agents or any such person acting under the
instruction of the 1
st
respondent found to be on the
properties;
2.8
The 3
rd
respondent is ordered and directed to freeze a
total amount of R165 000.00 (One Hundred and Sixty-Five Thousand
Rand) for
safe keeping, held in the bank account of the 1
st
and 2
nd
respondents with the following details: -
Dr L RINGANE
ABSA Bank Savings
Account
Account Number:
[…………..]
Branch Code: 632005
Alternatively
LINDIWE RINGANE
ABSA Bank Credit
Account
Account number:
[……………..]
Branch Code: 632005
2.9
In the event the 3
rd
respondent not being able to freeze
an amount of R165 000.00 (One Thousand Hundred and Sixty-Five
Thousand Rand) in the abovementioned
bank accounts, the 3
rd
respondent is interdicted from paying any amount of money from the
1
st
and/or 2
nd
respondent’s bank accounts
as stated here above in 2.8 and be authorized to freeze whatever
amounts the 1
st
and/or 2
nd
respondent do have
in any other and/or 2
nd
respondent to the maximum monetary
value of R165 000.00 (One Hundred and Sixty-Five Thousand Rand)
in total with immediate
effect;
2.10 The 3
rd
respondent is interdicted from effecting payment of an amount of
R165 000.00
(One Hundred and Sixty-Five Thousand Rand)
from the abovementioned bank accounts in 2.8 to the 1
st
and 2
nd
respondents or any other bank account so elected
by and on instructions of the 1
st
respondent, with
immediate effect;
2.11 The 3
rd
respondent is ordered and authorized to immediately stop and reverse
all payments pending to be made from the 1
st
respondent’s
bank accounts as stated in 2.8 here above.
2.12 The 3
rd
respondent is ordered and authorized to immediately effect payment of
any and all amounts currently frozen by the 3
rd
respondent
in the bank accounts of the 1
st
and/or 2
nd
respondents into the applicant’s attorneys Trust bank account,
CHARL NAUDEATTORNEYS, NEDBANK, Bank account Number 1[…],
Branch Code 198765 for safe keeping;
2.13 The 3
rd
respondent is ordered and authorized to keep the 1
st
and/or 2
nd
respondent’s bank accounts frozen to the
value of
R165 000.00
(One Hundred and Sixty-Five Rand)
pending the investigation and finalization of an action to be
instituted against the 1
st
and/or 2
nd
respondents within 30 days from the date of this order in the above
Honourable Court;
2.14 The 1
st
and 2
nd
respondents are authorized to immediately approach
the above Honourable Court for a variation and/or alternative relief
on the
same application and order before court, if necessary;
2.15 The 1
st
respondent is ordered to pay the costs of the application on party
and party scale
3.
The sheriff is authorized to immediately serve this court order on
the respondents;
4 Prayers 2, 2.1 to 2.15
above will be in the form of a
rule nisi
with immediate effect
and with a return date on ______________at 10:00 on
which date the respondents must show cause
why the
rule nisi
must
not be confirmed.
M.V
SEMENYA
ACTING
DEPUTY JUDGE PRESIDENT OF
THE
HIGH COURT; LIMPOPO DIVISION.
APPEARANCES
ATTORNEYS
FOR THE APPLICANT
:
CHARL NAUDE ATTORNEYS
COUNSEL
FOR THE APPLICANT
:
ADV. DIAMOND
ATTORNEY
FOR THE RESPONDANT
:
PHOSA LOOTS INC.
COUNSEL
FOR THE RESPONDENT
:
ADV.
RESERVED
ON
:
10 JUNE 2021
JUDGMENT
DELIVERED ON
:
01 JULY 2021