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[2019] ZALMPPHC 67
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Onverdient (Pty) Ltd and Another v Triple Options Trading 641 CC and Another (5994/2018) [2019] ZALMPPHC 67 (27 November 2019)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
CASE
NUMBER: 5994/2018
In
the matter between:
ONVERDIENT
(PTY) LTD
FIRST
APPLICANT
DANIEL
JOHANNES SMIT (JNR)
SECOND APPLICANT
AND
TRIPLE
OPTIONS TRADING 641 CC
FIRST
RESPONDENT
ANNELIZE
SMIT
SECOND RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The deponent of the founding affidavit Daniel Johannes Smit (Snr) is
married to the
second respondent Annelize Smit, and the second
applicant Daniel Johannes Smit (Jnr) is their son. The three are the
directors
and shareholders of the first applicant Onverdient (Pty)
Ltd. The first applicant owns the farm Waterval (the farm). Smit
(Snr)
and the second respondent are at present going through an
acrimonious divorce, which is not yet finalized.
[2]
The first applicant has sold a portion of the farm to Jacobus
Christofel Van Staden known as Koot during
2016. Koot and the second
respondent are members of Triple Option Trading 641 CC, the first
respondent. The principal place of
business of the second respondent
is on the farm. The second applicant as well as the second respondent
are staying on the farm.
The first applicant is also conducting its
business on the farm.
[3]
According to the applicants, the second respondent is refusing them
and the staff of the first applicant
entry on the farm. The
applicants in their founding affidavit have stated that the first
respondent has rented the farm from the
first applicant for a monthly
rental of R 25 000.00 for several years. The applicants have
stated that there was no written
lease agreement between the first
applicant and the first respondent, but that the lease was documented
in the minutes of the meeting
of directors. According to the
applicants, the first respondent has defaulted in rental payments and
owes the first applicant an
amount of R742 500.00.
[4]
On the 17
th
September 2018, the applicants through their attorneys wrote a letter
to the first respondent notifying it of the cancellation
of the lease
agreement and also attaching the schedule and breakdown of the
alleged rental that was due and owing. The alleged
rental that was
due was for the period August 2016 to March 2018 at a fixed monthly
rental of R 25 000.00 plus 14% VAT up
to March 2018, and from
April 2018 to September 2018 plus VAT of 15%. As per the notice, the
first respondent was required to vacate
the farm by the 30
th
September 2018 should it fail to pay the outstanding amount.
[5]
The first respondent did not vacate the farm on the due date.
That resulted in the
applicants launching an urgent application which
had part A and B. In part A they were seeking orders that the
respondents be interdicted
from carrying farming activities with
immediate effect and also to stop the harvesting of peaches or any
fruits on the section
of the farm; that the respondents allow the
applicants and its staff access to the farm to harvest peaches; that
the respondents
hand over to the first applicants any peaches that it
had already picked; and that the respondents allow the second
applicant access
to his house on the farm.
[6]
In part B, the applicants are seeking orders that the first
respondent immediately vacate
the farm, failing which the sheriff be
authorised to evict it from the premises; and that the first
respondent be ordered to pay
the applicants the sum of R 742 500.00
being the outstanding rentals due until 30
th
September
2018. The applicants in their founding affidavit have stated that
they are not evicting the second respondent from the
farm as her
access to the property will still be discussed in the pending divorce
action.
[7]
The
respondents are opposing the applicants’ application. In their
answering affidavit they have denied the existence of the
lease
agreement between the first applicant and the first respondent. They
have further stated that they never agreed to pay rent
for the farm
and/or orchards in the amount of R 25 000.00 per month. They further
stated that the minutes of the meeting of directors
dated 17
th
March 2017 state that the rental for the peach orchards would be R 25
000.00 per month, payable yearly, yet the invoice attached
to the
letter of the alleged cancelation of the lease agreement calculates
arrear rent from August 2016.
[8]
According to the second respondent, after she and Smit (Snr), have
instituted divorce
proceedings, they reached an amicable settlement
agreement on the 15
th
November 2014. The divorce matter
has been set down for the 17
th
February 2020. In terms of
the settlement agreement, she will remain on the farm and obtain
ownership of the farm. The respondents
have stated in their answering
affidavit that in terms of the settlement agreement the first
respondent would continue to conduct
peach farming operations on the
farm. The respondents submitted that the application for eviction by
the applicants is a breach
of the settlement agreement.
[9]
On the 15
th
October 2018 the matter was struck off the
roll of the urgent court due to lack of urgency. In this court
counsel for the applicants
submitted that the issue which the court
must decide is whether there was a lease agreement; if it is found
that there was a lease
agreement, whether it was cancelled; and if
there was no lease agreement what rights did the respondents have. It
is the applicants’
contention that if the respondents are
farming on the farm, they would have been permitted to do so by way
of a lease agreement.
[10]
The applicants’ counsel has submitted that a meeting was held
on the 17
th
March 2017 wherein a resolution was taken by
directors that action be taken against the first respondent with
regard to the outstanding
rentals owed to the first applicant. He
further submitted that the lease agreement was entered into some
years back and the first
respondent has not been paying rent since
its inception. According to the applicants, part of the outstanding
rental has prescribed
and they are claiming only a portion of it.
[11]
The respondents submitted that the alleged lease agreement did not
have full details; and that in their
founding affidavit, the
applicants have merely stated the first respondent rented the farm
from the first applicant for a rental
amount of R 25 000.00 per month
for several years. It is the respondents’ contention that the
first respondent was not represented
at the meeting of the 17
th
March 2017 wherein the alleged resolution was taken. The respondents
submitted there are material disputes of fact that warrants
the
dismissal of the application or a referral for oral evidence.
[12]
The applicants’ eviction application of the first respondent is
based on the alleged lease
agreement which the respondents dispute
its existence. According to the applicants it was an oral agreement.
However, the applicants
did not provide full details of the alleged
lease agreement as they have failed to state when the agreement was
entered into, for
how long, and what happens in case breach. The
minutes of the 17
th
March 2017 is not helpful as the first
respondent was not part of that meeting and was also not represented
at the meeting. On
the other hand, the second respondent has stated
that she and Smit (Snr) have signed a settlement agreement during
2014 wherein
it was agreed that she would remain on the farm in order
to obtain ownership of the farm, and further that the first
respondent
will continue with its operations of peach farming on the
farm.
[13]
It is the respondents’ contention that this matter cannot be
decided on papers since there is material
dispute of fact. In
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[1]
Hefer JA said:
“
A real, genuine
and
bona
fide
dispute
of fact can exist only where the court is satisfied that the party
who purports to raise the dispute has in his affidavit
seriously and
unambiguously addressed the fact said to be disputed. There will of
course be instances where a bare denial meets
the requirement because
there is no other way open to the disputing party and nothing more
can therefore be expected of him. But
even that may not be sufficient
if the facts averred lies purely within the knowledge of the averring
party and no basis is laid
for disputing the veracity or accuracy of
the averments. When facts averred are such that the disputing party
must necessarily
possess knowledge of them and be able to provide an
answer (or countervailing evidence), if they be not true or accurate
but, instead
of doing so, rests his case on a bare denial the court
will generally have difficulty in finding that the test is satisfied”
[14]
The respondents are not making bare denials, they have attached an
alleged settlement agreement between
the second respond and Smit
(Snr) wherein it was agreed that the second respondent is going to
take ownership of the farm after
the divorce is finalized. According
to the second respondent as part of the terms of the settlement
agreement, the first respondent
was to continue farming peaches on
the farm. Whether this settlement agreement is valid or not is not an
issue that I am called
upon to decide on it.
[15]
On the other hand the alleged oral lease agreement which the
applicants relies on has no full details. That
on its own is an
indication that the dispute in relation to the eviction of the first
respondent will not be decided on papers
as they stand. That is also
complicated by the settlement agreement between Smit (Snr) and the
second respondent. If indeed the
settlement agreement is valid and
the parties have agreed that the first respondent must continue
farming peaches on the farm,
what will be the basis to evict it.
[16]
In
National
Director of Public Prosecutions v Zuma
[2]
Harms DP said:
“
Motion proceedings
unless concerned with interim relief, are all about the resolution of
legal issues based on common cause facts.
Unless the circumstances
are special they cannot be used to resolve factual issues because
they are not designed to determine probabilities.
It is well
established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise on the affidavits,
a final order
can only be granted only if the facts averred in the applicant’s
affidavits, which have been admitted by the
respondent, together with
the facts alleged by the latter, justify such order. It may be
difficult if the respondent’s version
consists of bald or
uncreditworthy denials, raises fictitious disputes of fact, is
palpably implausible, far-fetched or so clearly
untenable that the
court is justified in rejecting them merely on papers. “
[17]
I agree with the respondents’ counsel that a real, genuine and
bona fide
dispute of fact in relation to the eviction of the
first respondent exist. The issues which the respondents have raised
are not
just bald denials, but have been substantiated with concrete
evidence and the court cannot just simply reject them.
[18]
The applicants have launched their application with the knowledge
that the alleged oral lease agreement
lacks full details and also
that there is a signed settlement agreement which is between Smit
(Snr) and the second respondent.
That settlement agreement has a
serious impact on the applicants’ application. In my view, the
applicants were fully aware
that with regard to eviction of the first
respondent, there were disputes of material facts which cannot be
resolved by way of
motion proceedings.
[19]
It is trite that an applicant who elects to proceed by way of motion
proceedings despite being
aware that a serious dispute of fact was
bound to develop, runs the risk that the application may be dismissed
with costs. It is
not proper that an applicant should commence
proceedings by way of motion with knowledge that the dispute of fact
might arise.
(
See
Room Hire Co (Pty) Ltd v Jeppe Street Mansion (Pty) Ltd)
[3]
[20]
Turning to the spoliation claim by the second applicant, there are
two factors requisite to found
a claim for an order for restitution
of possession on an allegation of spoliation. The first is that the
applicant was in possession
and, the second that he has been
wrongfully deprived of that possession and against his wish. (
See
Scoop Industries Pty) Ltd v Langlaagte Estate and G. M Company Ltd
(In vol. Liq)
[4]
[21]
Both parties are in agreement that the second applicant was living in
separate house at the farm
with the permission from the first
applicant which owns the farm. The applicants alleges that the second
applicant was chased away
from the farm by the second respondent as
the second applicant was supporting Smit (Snr) in his running of the
business. However,
the applicants did not give details as to when he
was chased out of the farm.
[22]
The second respondent in her answering affidavit has denied that she
had chased away the second applicant.
According to her, the second
applicant has left on his own volition during November 2015. The
applicants in their replying affidavit
has merely denied the contents
of the paragraph without correcting the respondents as to when he was
allegedly chased out of the
farm. In my view, the date of November
2015 remains unchallenged. If indeed he was chased out of the farm by
the second respondent,
the only date that appears in the papers is
that of November 2015 which the applicants did not dispute. That date
is more than
two years before the launching of the application.
[23]
In
Le
Richie v PSP Properties CC and Others
[5]
Yekiso J said:
“
As a general rule
a possessor who alleges that he has been dispossessed of a right
should act within a reasonable time to have his
possession restored.
If the applicant delays for more than a year before bringing his
application, there would have to be special
circumstances present to
allow such an applicant to proceed with his application.
[24]
The applicants have brought their application more than two years
after the alleged act of spoliation. They
did not present any special
circumstances why they should be allowed to proceed with their
application. On that point alone their
spoliation application stands
to fail.
[25]
With regard to the interdict relating to the peach harvest, the
application is moot as it was in relation
to the harvesting season
that was ending November 2018. The court has a discretion to deal
with the matter if the merits of the
case raises a discrete issue of
public importance that will have an effect on future matters. (
See
Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd
and Others)
[6]
.
In the present case none of the issues in relation to the interdict
raises a discreet issue of public importance that will have
an effect
on future matters. Therefore, in relation to the interdict of the
peach harvest, it stands to fail on the ground of mootness.
[26]
Since in this application the applicants were aware at the time when
they launched their application that
a material disputes of fact
might ensure in relation to the eviction application, and also that
in relation to the spoliation they
are required to present special
circumstances but has failed to do so, in my view, the appropriate
order will be to dismiss the
application instead of referring it for
oral evidence.
[27]
In the results I make the following order:
27.1 The applicants’
application is dismissed with costs on party and party scale which
costs will include the employment
of a senior counsel.
MF. KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR 1
ST
AND 2
ND
APPLICANT :
ADV ROSALIND J.
STEVENSON
INSTRUCTED BY
: DDKK ATTOERNEYS
COUNSEL FOR 1
ST
AND 2
ND
RESPONDENTS : ADV L KELLERMANN SC
INSTRUCTED BY
:
HAMEL ATTORNEYS
DATE OF HEARING
:
24 OCTOBER 2019
DATE OF JUDGEMENT
: 27
TH
NOVEMBER
2019
[1]
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at 375 G-I
[2]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 290 D-F
[3]
1949 (3) SA 1155 (TPD)
[4]
1948 (1) SA 91
(W) at 98-99
[5]
2005 (3) SA 189
(C) at 189 E-F
[6]
2013 (3) SA 315
(SCA)