Lategan N.O. and Others v NG White Farm Properties (Pty) Ltd and Others (1766/2017) [2021] ZANCHC 31 (23 July 2021)

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[2021] ZANCHC 31
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Lategan N.O. and Others v NG White Farm Properties (Pty) Ltd and Others (1766/2017) [2021] ZANCHC 31 (23 July 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
CASE
NO: 1766/2017
DATE
HEARD: 23 APRIL 2021
DATE
DELIVERED: 23 JULY 2021
In the matter
between:
JOHANNES
DIEDERICK LATEGAN N.O.
1
st
Plaintiff
CHEREé
LATEGAN
N.O.
2
nd
Plaintiff
PETRUS
JOHANNES ERASMUS
N.O.
3
rd
Plaintiff
(In
their capacities as trustees of the Elnathan 2011 Trust]
and
NG
WHITE FARM PROPERTIES (PTY)
LTD
1
st
Defendant
WILLEM
CHRISTOFFEL SCHOLTZ
N.O.
2
nd
Defendant
ANNA
JUDITH SUSANNA SCHOLTZ
N.O.
3
rd
Defendant
HENDRIK
JOHANNES VAN ECK
N.O.
4
th
Defendant
REGISTRAR
OF DEEDS,
VRYBURG
5
th
Defendant
JUDGMENT
Snyders
AJ:
INTRODUCTION:
[1]
The Plaintiffs seek leave to further amend their particulars of
claim. The First
Defendant opposes the amendment only in relation to
the introduction of the proposed enrichment claim.
[2]
The Plaintiffs are the
trustees for the time being of the Elnathan 2011 Trust and the
First
Defendant is NG White Farm Properties (Pty) Ltd. The second to fourth
defendants are the trustees for the time being of the
Swellendam
Trust and the Fifth Defendant is the Registrar of Deeds. Only the
First Defendant defended the main action and has opposed
this
application.
[3]
On 23 July 2020, the
Plaintiffs delivered a notice of intention to amend their particulars
of claim. The notice of intention to amend contained a number of
proposed amendments. The proposed amendment in issue is the
conditional
claim based on enrichment. It is prudent to deal with the
background of this matter before setting out the details of the
proposed
amendment and objection thereto.
BACKGROUND:
[4]
On 07 November 2012 and at Pretoria, the Plaintiffs
and First
Defendant entered into a written deed of sale for the purchase of Erf
588, a Portion of Erf 187, Vaalharts Settlement measuring
91.485
hectares ("the property'). In terms of clause 1 of the deed of
sale, the parties agreed that the Plaintiffs would pay
the First
Defendant the purchase price on date of registration of the transfer
of the property, but no later than two months prior
to the expiry of
the lease agreement in respect of the property concluded between the
First Defendant and a certain JDL Trust. The
lease agreement expired
on 31 December 2016. The Plaintiffs would also provide the First
Defendant with approved bank guarantees
for the full purchase price
six months prior to the expiry of said lease agreement (i.e. 30 June
2016).
[5]
According to the First Defendant, the Plaintiffs
were not registered
as VAT vendors at the time of the conclusion of the deed of sale. The
sale was thus subject to VAT. The purchase
price was thus R9 120
000.00 being R8 000 000.00 plus VAT at 14%.
[6]
In terms of clause 4 of the deed of sale, the Plaintiffs
would take
possession of the property on date of registration.
[7]
The First Defendant alleges that the Plaintiffs
breached the
agreement by failing to provide the guarantees on or before 30 June
2016, failing to provide the guarantees for the
full purchase price,
failing to provide guarantees for the purchase price by 31 October
2016 and failing to pay the purchase price
or any portion thereof by
31 October 2016 or at all thereafter.
[8]
On 31 January 2017 the First Defendant purported
to cancel the deed
of sale based on the failure to pay the purchase price by 31 October
2016. On 06 March 2017, the First Defendant
again purported to cancel
the deed of sale on the basis that the guarantee was not furnished in
accordance therewith. The Plaintiffs
contend that the deed of sale
was not validly cancelled and remains extant. The First Defendant
alleges that it was terminated by
written notice.
[9]
The Plaintiffs instituted action during August 2017
claiming, inter
alia, the enforcement of their rights in terms of the deed of sale.
The First Defendant delivered a Plea and Counterclaim.
In the
Counterclaim, the First Defendant sought the ejectment of the
Plaintiffs from a 8 hectare portion of the property. In the
Plea to
the Counterclaim, the Plaintiffs admit that it took occupation of the
8hectare portion during November 2012 and have been
in occupation
since. The Plaintiffs allege that it is in legal occupation of the
8-hectare portion. In the proposed amendment, the
Plaintiff sets out
the basis, distinct from the agreement, by virtue of which it has
occupation of the 8-hectare portion.
[10]
On 24 June 2019, the Plaintiff delivered amended particulars of
claim.
On 12 July 2019, the First Defendant delivered its
consequentially adjusted plea and counterclaim. On 09 December 2019,
the First
Defendant filed a further amended plea and counterclaim.
This sparked the current application to amend by the Plaintiffs.
THE
PROPOSED AMENDMENT:
[11]
The proposed amendment forming the basis of this application is a
conditional claim in the event
that the Court finds that the
agreement was lawfully terminated by the First Defendant and that the
Plaintiffs are not entitled to
specific performance, viz transfer of
the property into their name. The Plaintiffs allege that during
November 2012, the First Defendant
verbally granted the Plaintiffs
consent to occupy an 8-hectare portion of the property for an
indefinite period terminable at the
will of the First Defendant. The
Plaintiffs thus had open occupation and control of the 8-hectare
portion since November 2012 to
the exclusion of the rights of the
First Defendant. Alternatively, pleaded the Plaintiffs, it took
occupation of the 8-hectare portion
of the property during November
2012.
[12]
During or about November 2012, the Plaintiffs planted 1 600 pecan nut
trees and have cared for
same since. Prior to the amended
counterclaim filed in October 2017 seeking a
rei vindicatio
,
the First Defendant did not take issue with the Plaintiffs occupation
and control of the 8 hectare portion of the property; alternatively
the Plaintiffs took occupation of the 8 hectare portion of the
property in the bona fide but mistaken belief that it had the First
Defendant's consent to do so. The planting of the pecan nut trees are
pleaded to be a necessary and useful improvement. The market
value of
the property has thus increased by R2 400 000.00. In its replying
papers, the Plaintiffs amended the amount of trees planted
from 1 600
to 653. Consequently, the increase in the market value of the
property was reduced from R2 400 000.00 to R975 000.00.
As a result,
the First Defendant was unjustly enriched at the expense of the
Plaintiffs in the sum of R975 000.00. The Plaintiffs
pray for payment
of this amount in the event that the trial Court finds that they are
not entitled to transfer of the property.
THE
OBJECTION TO THE AMENDMENT:
[13]
In its notice of objection to the proposed amendment, the First
Defendant stated that:
13.1
The proposed claim is not the same or part of the relief originally
or currently claimed by the Plaintiffs;
13.2
The proposed claim arose more than three years before the Plaintiff's
Rule 28 notice in circumstances where:
the proposed claim is for
expenses allegedly incurred by the Plaintiff in planting and caring
for pecan nut trees on the First Defendant's
property; the proposed
claim would, therefore, have fallen due when the pecan nut trees were
planted; and the Plaintiff planted the
pecan nut trees more than
three years before the Rule 28 notice; and consequently
13.3 The Plaintiffs'
proposed amendment seeks to introduce a new cause of action in
respect of a claim which has already prescribed
in terms of
section 1
1
of the
Prescription Act, 68 of 1969
.
[14]
The Plaintiffs contend that it occupies the 8 hectare portion of the
property with the express
or tacit consent of the First Defendant;
alternatively that it took occupation and control of said portion in
the bona fide but mistaken
belief that it had the First Defendant's
express or tact consent to occupy. The First Defendant denies that
the Plaintiffs were ever
lawful or bona fide occupiers of the
property and deny ever granting the Plaintiffs consent to occupy or
use the property. The First
Defendant was unaware that the Plaintiffs
had occupied the 8-hectare portions Additionally, the First Defendant
disputed the Plaintiffs'
right to occupation in an eviction
application which was served on the JDL Trust. It appears that the
First to Third Plaintiff in
the present proceedings are also the
trustees of the JDL Trust. In the founding affidavit of the eviction
application, it was stated
that:
"I confirm
that the Elnathan 2011 Trust and its trustees have no right to
possession of the property — Even if the aforesaid
dispute is
decided in their favour, clause 4 of the agreement of sale stipulates
that they are only entitled to occupation on date
of registration of
transfer of the property in their names. I will accordingly
investigate this allegation by their attorneys and,
if found to be
true, will cause eviction proceedings to be instituted against them
as well.”
That
application was served on 02 October 2017 and the eviction
application against JDL Trust granted. However, the Plaintiffs were
not cited as parties in that application and no eviction order
sought, nor granted, against the Plaintiffs.
[15]
The Plaintiffs allege that prescription will begin to run against
lawful and/or bona fide occupiers
when legal proceedings are taken to
terminate occupation. In causa on 17 October 2017 when the First
Defendant filed its counterclaim
seeking to eject the Plaintiffs from
the property based on the
rei vindicatio
. The First Defendant
states that prescription begins to run when the improvements are made
because the increase in the owner's estate
occurs at this stage.
Consequently, legal proceedings to terminate occupation is not a
prerequisite.
THE
ISSUES:
[16]
There are two issues to be determined in this application. The first
is whether the
First
Defendant has relied on grounds of objection outside of that which
was set out in its notice of objection. The second is whether
the
proposed amendment
seeks
to introduce a new cause of action which has prescribed,
RULE
28(3):
[17]
Rule 28(3) of the Uniform Rules of Court provide:
"Any
objection to a proposed amendment shall clearly and concisely state
the grounds
upon which the objection is
founded'
[18]
A party cannot be allowed to rely on grounds of objection not raised
in the notice of objection.
[1]
Mr
Van Der Walt, for the Plaintiffs, contend that the First Defendant is
limited to what is contained the notice of objection, viz
that the
proposed amendment introduces a new cause of action which has
prescribed. The grounds outside of the notice of objection
are facts
alleged in the answering affidavit. The first issue raised by the
First Defendant is whether the Plaintiffs were lawful
or bona fide
occupiers of the 8-hectare portion of the property. The second
contention is when the First Defendants took issue with
the
Plaintiffs' occupation and control of the 8-hectare portion.
[19]
A formal notice of motion proceedings in terms of Rule 6 was not
envisioned for the Rule 28 process.
[2]
In
this matter, however, this is the route the parties had followed. The
facts alleged by the First Defendant stem from an answering
affidavit
which was filed in response to the Plaintiffs founding affidavit. In
my view, all of the factual disputes raised by the
First Defendant
directly relate to the grounds of objection. There are no new grounds
of objection raised by these facts. They are
so closely intertwined
with the grounds of objection that they do not appear to be separate
therefrom. This is what distinguishes
this matter from Squid Packers
(Pty) Ltd v Robberg Trawlers (Pty) Ltd
[3]
.
The purpose of Rule 28(3) is for the party who wishes to amend to
know the basis upon which the objection to the proposed amendment
is
based. The filing of an answering affidavit in this matter formed
part of that basis and did not detract from, alter, nor was
it
distinguishable from the stance taken in the grounds of objection.
The facts were used in support of the objection that the proposed
amendment is based on a new cause of action which has prescribed. It
is my finding that the First Defendant did not raise new grounds
of
objection.
NEW
CAUSE OF ACTION.
[20]
The
Plaintiffs assert that the enrichment claim does not introduce a new
cause of
action
because they had raised it in their plea in reconvention. The plea in
reconvention raised a lien as a defence for the planting
and caring
for the pecan nut trees. Alien can only be raised as a defence and
does not constitute a cause of action as was stated
by the Appeal
Court in Brooklyn House Furnishers (Pty) Ltd v Knoetze & Sons
[4]
.
Thus, irrespective of whether the enrichment claim is conditional, it
does constitute a new cause of action.
PRESCRIPTION:
[21]
Section 12(3)
of the
Prescription Act, 68 of 1969
states.
"A debt
shall not be deemed to be due until the creditor has knowledge Q/ the
identity of the debtor and of the facts from which
the debt arises:
Provided that a creditor shall be deemed to have such knowledge if he
could have acquired il by exercising reasonable
care.”
[22]
In the
matter of Gericke v Sack
[5]
,
the Appellate Division held that a party who alleges that a debt has
prescribed bears the onus to prove such allegation. The First
Defendant has to prove the date upon which prescription began to run
and when it was completed. In other words, the date upon which
the
Plaintiffs knew the facts from which the debt arose; alternatively
the date upon which the creditor is deemed to have knowledge
of such
facts. Prescription is interrupted when notice is given in terms of
rules of Court to amend a summons
[6]
.
[23]
Counsel for the parties are ad idem that prescription begins to run
against lawful or bona fide possessors or occupiers when they become
aware that they are not the owners of, or entitled to occupy
the
property. The question is when this awareness was within the
knowledge of the Plaintiffs in order to determine whether the matter
has prescribed. Mr Van Der Walt argued that the Plaintiffs became
aware of the facts on 07 October 2017 when the First Defendant
filed
its counterclaim. Mr Nel, for the First Defendant, countered that the
Plaintiffs were aware that they were not lawful or bona
fide
possessors since November 2012 when the pecan nut trees were planted.
An alternative date would be 02 October 2017 when the
First Defendant
sought the eviction of the JDL Trust, who have the same trustees as
the Plaintiffs.
[24]
In
support of his argument, Mr Van Der Walt sought to rely on the matter
of Meyer's Trustees v Malan
[7]
.
This decision, which was followed in a number of matters
[8]
,
stated that enrichment claims of possessors or occupiers in respect
of improvements do not arise until the owner of the immoveable
property asserts his rights to the immoveable property or makes a
demand in respect thereof, which is incompatible with the continued
possession or occupation of such immoveable property. This matter
came under heavy criticism in the Appeal Court in the matter of
Nortje en 'n Ander v Pool, N0
[9]
.
The criticism stems from the dissenting judgment by Ogilvie Thompson
JA and the dissenting judgment of Rumpff AR. Ogilvie Thompson
JA
refers to
[10]
the sound criticism by Prof De Vos
[11]
of
the Malan matter. This criticism is that a bona fide possessor need
not wait for the true owner to take steps to evict him in order
to
claim compensation. The bona fide possessor may at any time after he
discovers that he is not the true owner of the land take
steps to
claim compensation. Additionally, Rumpff AR held
[12]
:
"Na my
mening is dit, wat die reg betr€f, onnodig vir die eisers om te wag
tot 'n formele versteuring deur die eksekuieur,
en wal diefeite
betrej; is dit onrealisties om van hulle te venvag om voori te gaan
met ontginning terwyl hulle nou wee/ dat die
kontrak ongeldig is, en,
danksy die weiering van die eksekuteur tot legalisasie van die
kontrak, hulle enige moment kan verwag om
in hul bedrywigheid gestop
te word.”
[25]
Although not bound by the minority decision above, I accept the
reasoning by
Ogilvie
Thompson JA and Rumpff AR. Consequently, I do not agree with Mr Van
Der Watt that the Plaintiffs first had to take action
against the
Plaintiffs before they could raise an enrichment claim
[26]
In a majority decision by the Full Court of this Division, Lakka v
Beukes and Another
[13]
,
the Court held:
"[68] The
further argument by Mr Jankowitz is that since a lien is accessory to
a main obligation, in this case the claim for
enrichment against the
Visagies, the lien is extinguished when the main obligation
prescribes. Since the first respondent has attached
proof of
improvements done over the period 2010 to 2015, the argument is that
the enrichment claim had prescribed and that the lien
could therefore
not be invoked.
[69]
To succeed with such an argument, the appellant would have to show
(hat during the period 2010 to 2015, the first
respondent had
knowledge of the facts to sustain an enrichment claim against the
Visagies. The evidence however shows that the first
respondent
effected the repairs for the benefit of herself and her family while
under the impression that she would become the registered
owner of
the property'. There could have been no question of an enrichment
claim at that stage. The earliest an enrichment claim
could have
become due is after the property had been sold to the appellant and
the first respondent had become aware of the facts
from which the
claim arose in terms of
s12(3)
of
the
Prescription Act No. 68 0/1969
.”
[27]
When did the Plaintiffs, exercising reasonable care, come to know
that they are not in lawful occupation
of the property? The argument
by Mr Nel is that the Plaintiffs knew that they could not occupy the
immoveable property prior to registration.
They knew from the onset
at November 2012 that they could not be in lawful occupation of the
property. The size of the entire immoveable
property is 91.485
hectares. The Plaintiffs case js that since 2012 they occupied an
8hectare portion thereof in terms of a verbal
agreement. The First
Defendant disputed this verbal agreement for the first time some 05
years later in October 2017. In the eviction
papers relating to JDL
Trust, the First Defendant said it would investigate the claims by
the Plaintiffs and launch eviction proceedings
if they were occupying
the 8-hectare portion. What transpired, however, was not eviction
proceedings, but a Counterclaim filed on
09 December 2019. However, I
am not convinced that this was the first date upon which the
Plaintiffs became aware of their unlawful
occupation of the property.
Although not a party to the eviction proceedings against JDL, as the
trustees in both the JDL Trust and
Elnathan 2011 Trust, the
Plaintiffs were privy to the First Defendant's dispute of their
unlawful occupation.
[28]
Having found that the Plaintiffs did not need to wait for the First
Defendant to take action to lodge an enrichment claim, it follows
that by exercising reasonable care, the Plaintiffs should have
been
aware that they could not be in occupation of the 8-hectare portion
by 07 October 2017. Nevertheless, the
Rule 28
notice, which
interrupts prescription, was served and filed on 23 July 2020. It
follows that although the amendment raises a new
cause of action, it
has not prescribed. Even if I am incorrect on this aspect, it raises
a triable issue which is better suited to
a trial court to make a
finding on after hearing and evaluating the evidence lead.
[29]
There is no reason why costs should not follow the result. Although
both counsel sought punitive cost orders, I am not satisfied that the
conduct by either party warrants a punitive cost order.
[30]
In the premise, the following order is made:
1
The Piaintiffs are granted
leave to amend their particulars of claim
in accordance with their notice of intention of amend as qualified in
terms of paragraph
31.2.1 and 32.2.23 of their replying affidavit;
2
The costs of the application are to be borne by the First
Defendant.
J
SNYDERS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For
the applicant: ADV D VAN DER WALT SC
(oio
Magoma Attorneys.)
For
the respondents: ADV EJJ NEL
(oio
van de Wall Inc.)
[1]
Squid Packers (Pty) Ltd v Robberg Trawlers (Pty) Ltd 1999 (l) SA 153
(SE) at 1 158A-C
[2]
Squid Packers (Pty) Ltd v Robberg Trawlers (Pty) Ltd,
supra,
at
1157H
[3]
Squid Packers (Pty) Ltd v Robberg Trawlers (Pty) Ltd, supra
[4]
1970 (3) SA 264
(A) at 270 E-F
[5]
1978 (1) SA 821
(AD) at 827H to 828B
[6]
Mias
De Klerk Boerdery (Edms) Bpk v Cole
1986
(2) SA 284
(N) at 287 B to E
[7]
1911 TPD 559
at 559 and 573.
[8]
See Mattheus v Stratford and Another
1946 TPD 498
at 505 and De Kock
NO v Van Schatkwyk 1966 ( l ) SA 696 (0) at 701 A -F
[9]
1966 (3) SA 96 (A)
[10]
At 106B
[11]
Verrykingsaanspreeklikheid
in die Suid Afrikaanse Reg
at
P133
[12]
At 126C
[13]
(CA & R 60/2018)
[2020] ZANCHC 11
(23 MARCH 2020)