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[2021] ZAGPPHC 231
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Vox Terra (Pty) Ltd v Legemaat and Others (40056/2019) [2021] ZAGPPHC 231 (26 March 2021)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 40056/2019
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
In
the matter between:
VOX
TERRA (PTY)
LTD
APPLICANT
and
DIRK
JACOB
LEGEMAAT
FIRST RESPONDENT
CORNELIUS
LEGEMAAT
SECOND RESPONDENT
JOHANNES
LEGEMAAT
THIRD RESPONDENT
JUDGMENT
Van
der Schyff J
[1]
In the notice of motion to the application, which was initially
brought as an urgent application, the applicant seeks an order
restricting the respondents from conducting any farming activities
directly or indirectly through any legal entity or a third party
on
the immovable property identified in the notice of motion. During
argument, the applicant's counsel indicated that the applicant
only
seeks an order preventing the respondents from conducting farming
activities on the identified immovable properties. It must
be stated
from the onset that condonation is granted for the late filing of
affidavits and the filing of supplementary affidavits.
[2]
It is evident from the founding affidavit that the applicant, and a
person not joined as a party in these proceedings, one Cornelis
Legemaat Snr (‘Legemaat Snr'), concluded a written lease
agreement in terms of which the said Legemaat Snr leased the
identified
immovable properties from the applicant. Legemaat Snr and
the applicant are embroiled in litigation regarding the alleged
cancelation
and subsequent relocation of the lease agreement.
Legemaat Snr instituted two actions against the applicant. The
applicant issued
summons against Legemaat Snr under case number
90290/18. In the particulars of claim, the applicant pleaded that
there was a tacit
relocation of the lease agreement concluded between
itself and Legemaat Snr. It applied for summary judgment against
Legemaat Snr.
An opposing affidavit deposed to by the first
respondent in these proceedings, Dirk Legemaat, was filed. In this
affidavit, the
first respondent stated that Legemaat Snr, his father,
is 'an elderly retired farmer' who does not participate actively in
farming
activities anymore.
[3]
In the founding affidavit to this application, the applicant states
the following:
i.
The first respondent does not reside on any portion of the immovable
properties but is in charge of the farming operations, a
diary, on
the identified properties;
ii.
The second and third respondents reside on a portion of the
identified property;
iii.
The identified properties comprise Portions 5, 7, and 9 of the Farm
Kaalfontein 513, District Rayton, Gauteng, and the remaining
extent
of portion 20 of the Farm Rietfontein;
iv.
The respondents are unlawfully utilising the immovable property to
conduct farming operations.
[4]
A substantial portion of the founding affidavit deals with the
dispute between Legemaat Snr and the applicant. It deals with
alleged
factually incorrect statements contained in Legemaat Snr's
particulars of claim. Because Legemaat Snr is not a party to
these
proceedings and cannot answer to the allegations contained in the
founding affidavit relating to him directly, I cannot make
any
findings in this regard, save for acknowledging that a dispute
exists.
[5]
The applicant disputes the right of the three respondents to conduct
farming activities on the identified properties. The agreement
concluded between itself and Legemaat Snr did not provide for any
property to be subleased. In the result, the applicant submits
that
the respondents are conducting farming operations on the applicant's
immovable properties without any right to do so. The
applicant avers
that the respondents allowed their employees to erect informal
housing on the identified properties and contaminated
the
groundwater. The applicant contends that the balance of convenience
is in its favour because the respondents are currently
deriving an
unlawful benefit from the occupation of, and farming activities
conducted, on the properties.
[6]
In their answering affidavit, the respondents oppose the relief
sought on the basis that various lease agreements were concluded
between their father, Legemaat Snr, and the applicant. Legemaat Snr
engaged in, amongst others, dairy farming, commercial grain
farming,
and meat production. Legemaat Snr allegedly decided to unbundle the
various farming activities, and the three respondents
were placed in
control of the various legal entities established to conduct the
farming activities. The income generated still
accrues to Legemaat
Snr, and the respondents are only reimbursed from the income derived
from these entities. The legal entities
are managed by the
respondents but controlled by Legemaat Snr. The farming activities
conducted on the applicant's properties constitute
a family business.
The legal entities created did not need to enter into sub-lease with
Legemaat Snr since it still formed part
of his farming activities.
The dairy farm, specifically, is conducted through an entity Orono
Trading 61 a private company. The
first respondent is the director of
Orono Trading.
[7]
The respondents raised the non-joinder of Legemaat Snr as a point in
limine
. They contend that since Legemaat Snr derives an income
from the farming activities conducted on the properties, he has a
direct
and substantial interest in the subject matter of the
litigation and is a necessary party that should have been joined.
They likewise
contend that it is not the farming activities through
which the applicant is deprived of its possession of the farm, but
due to
the lease agreement it concluded with Legemaat Snr.
[8]
In reply, the applicant again referred to the agreement it concluded
with Legemaat Snr and contended that Legemaat Snr was prohibited
from
ceding or waiving in favour of any third party any portion of the
leased properties. Legemaat Snr was expressly prohibited
from
subleasing any portion of the property, save for a particular
dwelling. As a result, the legal entities created to facilitate
the
unbundling of Legemaat Snr's farming activities constitute
independent legal entities with which the applicant has not concluded
any lease agreement.
[9]
The applicant submitted that it was unnecessary to join Legemaat Snr
to the proceedings because the first respondent stated
in the
affidavit opposing summary judgment under case number 90290/18 that
Legemaat Snr does not actively participate in farming
activities.
[10]
A further affidavit, deposed to by the first respondent, was filed
shortly before the application was argued. It was stated
that the
keys to the properties were handed over to the farm manager during
July 2020. The remaining livestock was removed from
the farm on 24
December 2020. In the result, they contend, the relief sought became
mainly academic.
[11]
The applicant denied the averment that the property was not occupied
by the respondents since July 2020 and
attached as proof a copy of its
bank statements indicating that the respondents
paid the
monthly rental for January 2021 on 2 January 2021. They also refer to
an e-mail dated 19 October 2020 wherein it is, among
other things,
acknowledged that the house was returned to the applicant. They also
deny that the employees of the respondents vacated
the property.
[12]
In order to obtain interim relief, the applicant must, at the
very least, establish that it has a
prima
facie
right, that there is well-grounded apprehension of irreparable
harm if the interim relief is not granted and the ultimate relief
is
eventually granted, that the balance of convenience favours the grant
of the interim interdict and that the applicant does not
have another
satisfactory remedy –
Reckitt & Colman SA (PTY) Ltd v SC
Johnson & Son (SA) (Pty) Ltd
1995 (1) SA 725
(T)
729I-730G. In order to obtain final relief, the applicant must prove
a clear right, an injury actually committed or reasonably
apprehended, and the lack of an adequate alternative remedy –
Setlogelo v Setlogelo
1914 AD 221
at 227.
[13]
The applicant is the owner of the identified immovable properties. On
the respondents own version, the said properties are
utilised by
legal entities managed by them. These legal entities are distinct
legal personae.
The applicant did not conclude any agreement
with any legal entity, other than Legemaat Snr, allowing it to
utilise the property.
Although the respondents vacated the property,
the applicant is entitled to have peace of mind that the respondents
will not continue
with their activities.
[14]
I was requested to determine liability for the reserved costs
associated with the urgent court application. The dispute between
the
parties is not, in my view, a dispute that required the attention of
the urgent court. In the result, the applicant is liable
for the
costs. As for the costs of the application heard by me, there is no
reason to deviate from the principle that costs follow
suit. The
second respondent withdrew his opposition to the application and the
notice to that effect was filed with the applicant’s
attorney
of record on 23 November 2020. The second respondent will not be
liable for any costs incurred past this date.
ORDER
In
the result, the following order is granted:
1.
The respondents and /or any other person /
entity through the
respondents are interdicted from conducting any farming activities
(including specifically a dairy) on any or
all of the following
immovable properties:
1.1.
The Remaining Extent of Portion 20 of the Farm Rietfontein 366,
Registration
Division JR Province Gauteng, 296 3304 hectares in
extent;
1.2.
Portion 5 of the Farm Kaalfontein 513, Registration Division JR
Province
Gauteng, 14,5711 hectares in extent;
1.3.
Portion 7 of the Farm Kaalfontein 513, Registration Division JR
Province
Gauteng, 42,8266 hectares in extent;
1.4.
Portion 9 of the Farm Kaalfontein 513, Registration Division JR
Province
Gauteng, 462, 1707 hectares in extent.
2.
The first to third respondents, jointly and
severally, one paying the
others to be absolved, are to pay the costs of the application,
incurred until 23 November 2020.
3.
The first and third respondent, jointly and
severally, one paying the
others to be absolved, are to pay the costs of the application,
incurred from 23 November 2020.
4.
The applicant is to pay the reserved costs
of the urgent court
application.
E
van Der Schyff
Judge
of the High Court, Gauteng, Pretoria
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by e- mail and by uploading it to
the electronic file of this matter on CaseLines. The
date for hand-
down is deemed to be 26 March 2021.
Counsel
for the applicants: Adv. APJ Els
Instructed
by:
Couzyn, Hertzog & Horak
Counsel
for the respondent: Adv. Nadia Nortjé
Instructed
by:
JPA
Venter Attorneys
Date
of the hearing:
24 February 2021
Date
of judgment:
26 March 2021