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[2019] ZAGPPHC 82
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Norman & Gary Askin Dunswart Properties (Pty) Ltd v Arcelormittal South Africa Limited and Others (2017/78274) [2019] ZAGPPHC 82 (14 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED:
CASE NO
:
2017/78274
DATE:
14
TH
MARCH 2019
In
the matter between:
NORMAN
& GARY ASKIN DUNSWART PROPERTIES (PTY) LTD
Applicant
and
ARCELORMITTAL
SOUTH AFRICA
LIMITED
First
Respondent
WICTRA
HOLDINGS (PTY)
LIMITED
Second
Respondent
THE
REGISTRAR OF
DEEDS
Third
Respondent
JUDGMENT
ADAMS J:
[1].
This is an opposed application by the applicant for interim
interdictory relief against
the first and second respondents. The
applicant applies for an order interdicting the first respondent,
pending the adjudication
and finalisation of an action instituted
during 2004 by the applicant against the first respondent, from
selling, disposing of,
alienating, encumbering or transferring
certain Erven in Benoni. The applicant also applied for an order
interdicting the second
respondent from purchasing or taking transfer
of some of the aforementioned erven.
[2].
The application is opposed only by the first respondent. The second
respondent did not
deliver notice of intention to oppose the
application and the relief sought against it, which is dependent upon
and ancillary to
the relief claimed against the first respondent.
This means that the applicant would be entitled to the relief prayed
for against
the second respondent should it be successful with its
application for an interdict against the first respondent.
Conversely, in
the event of the application for an interdict against
the first respondent failing, the application against the second
respondent
also stands to be dismissed. This is a matter of sheer
logic.
[3].
The application is based on a written agreement concluded between the
applicant and the
first respondent during March 2003 ('the option
agreement'), in terms whereof the first respondent granted to the
applicant the
sole and exclusive option for a period of one year to
purchase certain immovable properties described in the option
agreement for
the purchase price of RS million. This agreement was
subject
inter alia
to the suspensive condition that the first
respondent would obtain the consent to establish a Township on the
properties in terms
of the provisions of section 96 of the Town
Planning and Township Ordinance, 15 of 1986. During February 2004 the
applicant exercised
the option to purchase the properties, which
meant that, according to the applicant, a valid agreement for the
purchase and sale
of the properties came into existence. This was
disputed by the first respondent who denied that a valid sale
agreement was concluded
pursuant to the option agreement. The dispute
could not be resolved between the parties and the applicant
instituted legal action
against the first respondent, claiming a
declaratory order that a valid and enforceable sale agreement for the
purchase of the
properties came into existence between the applicant
and the first respondent. The first respondent defended the action on
the
basis
inter alia
that the option agreement relied upon by
the applicant in the action was not an option.
[4].
This action is presently still pending although it was followed by
certain events, the
most notable of which was the fact that the
parties purported to settle the action by concluding a further
agreement for the sale
and purchase of the properties. It is however
common cause between the parties that the agreement in terms of which
the parties
supposedly settled the dispute between them, which formed
the subject of the 2004 action, is void
ab initio.
Those
events can and should therefore, in my view, be disregarded for
purposes of the sequence of events relevant to this application.
The
simple fact of the matter is that the 2004 action is still extant and
pending.
[5].
During 2017 the establishment of Benoni Extension 74 Township was
approved.
[6].
The first respondent opposed the application on the basis
inter
alia
that the applicant has not demonstrated, as it is required
to do in an application for interim interdictory relief, that it has
a
prima facie
right which requires protection. It is the
applicant's case that its right to bring this application is founded
on the option agreement,
which right the applicant is attempting to
enforce in the 2004 action, which is presently pending.
[7].
The first respondent contends that the applicant has no such
prima
facie
right for the simple reason that the option agreement is
void and unenforceable if regard is had to the provisions of section
67
of the Town Planning Ordinance, 15 of 1986 ('the Ordinance'),
which provides as follows:
'67. Prohibition of certain
contracts and options.- (1)
After
an owner of land has taken steps to establish a township on his land,
no person shall, subject to the provisions of section
70-
(a)
enter
into any contract for the sale, exchange or alienation or disposal in
any other manner of an erf in the township;
(b)
grant
an option to purchase or otherwise acquire an erf in the township,
until such time as the township is
declared an approved township: Provided that the provisions of this
subsection shall not be construed
as prohibiting any person from
purchasing land on which he wishes to establish a township subject to
a condition that upon the
declaration of the township as an approved
township, one or more of the erven therein will be transferred to the
seller.
(2)
Any
contract entered into in conflict with the provisions of
subsection(1) shall be of no force and effect.
(3)
Any
person who contravenes or fails to comply with subsection (1) shall
be guilty of an offence.
(4)
For
the purposes of subsection (1)-
(c)
"steps" includes steps
preceding an application in terms of section 69 (1) or 96 (1);
(b) "any
contract" includes a contract which is subject to any condition,
including a suspensive
condition.'
[8].
As I indicated above, applicant's application for interim
interdictory relief is based
on its alleged
prima facie
right
in terms of the option agreement. It is the case of the first
respondent that it has an unassailable defence to the 2004 action
which is based on the option agreement. The first respondent contends
that, having regard to the provisions section 67 of the ordinance,
the option agreement is invalid and
void ab initio.
[9].
I agree with this contention on behalf of the first respondent. From
the papers before
me it is clear that the provisions of section 67 of
the Ordinance are applicable to the option agreement. If regard is
had to the
wording of the option itself, there can be no doubt that
the first respondent, as the owner of the properties in question,
started
taking steps to establish a township, being Benoni Extension
74 Township, prior to the conclusion of the option agreement between
the applicant and the first respondent. Clause 4.1 of the option
agreement, which was concluded between the parties on the 25
th
March 2003, provides as follows:
'[The applicant] acknowledges that
[the first respondent] is in the process of establishing a township
on the additional properties
and certain of the properties.'
[10]. I also
have no doubt in my mind that the properties, which are the subject
of the option agreement, were
in fact Erven, as envisaged in section
67 of the Ordinance, in Benoni Extension 74 Township, which the
respondent intended establishing,
and in respect of which Township
the first respondent had already taken steps to establish by the time
the option agreement was
concluded. Section 67(1)(b) expressly
prohibits the granting of an option to purchase or otherwise acquire
immovable property in
the Township.
[11]. The first
respondent was involved in litigation with another company, namely
Reclamation Property Holdings
(Pty) Limited ('Reclamation'), which
had also purchased immovable properties, which also formed part of
the proposed Township.
That agreement between the first respondent
and Reclamation was concluded on the 19th of March 2003, that is at
more or less the
same time during which the option agreement was
entered into between the applicant and the first respondent. First
respondent contended
that the property which formed the subject of
the litigation between Reclamation and the first respondent was part
of the Township,
which the first respondent intended establishing.
The aforegoing came out and was confirmed during the aforementioned
litigation,
which, according to the first respondent, is support for
the first respondent 's contention that properties which the
applicant
would have acquired pursuant to the option agreement did
not constitute, as contended for by the applicant, the whole of
Benoni
Extension 74 Township, which would have taken the option
agreement outside of the ambit of the provisions of section 67 of the
ordinance.
[12].
The version of the first respondent is furthermore to the effect that
the application by the first respondent
for the establishment of a
township had been submitted by the 19t h March 2003. Therefore, it
has to be accepted that by the time
the option agreement was entered
into, the first respondent had already commenced the processes for
the establishment of the Township.
I find myself in agreement with
the submissions made by Mr Du Plessis, Counsel for the first
respondent, that there is no merit
in the contention by the applicant
firstly that all of the properties on the land in the Township to be
established were acquired
by the applicant pursuant to the option
agreement and secondly that the processes of establishing the
Township had not as yet commenced
at the time the option agreement
was concluded. The applicant's version in that regard, if one has
regard to the papers before
me, is so far-fetched, that same can be
rejected without further ado.
[13]. Some
of the facts, not all of them, upon which I base my conclusions
herein, are contained in a Supplementary
Answering Affidavit by the
first respondent, delivered on the 8
th
of March 2018,
after the applicant had delivered its replying affidavit on the 9th
of February 2018. The first respondent applies
for leave to file the
said supplementary affidavit and proffers the following explanation
for the filing of an additional affidavit.
The first respondent
contends that it was necessary for it to file the additional
affidavit because in its replying affidavit the
applicant deals with
two issues, which ought to have been dealt with in the founding
affidavit. Firstly, so the first respondent
contends, the applicant
alleged for the first time in the replying affidavit that it
purchased all of the properties comprising
the Township and for that
reason the Ordinance is not applicable. This is factually incorrect.
Secondly , the applicant states
in the replying affidavit that the
first respondent had not taken steps to establish the Township at the
time that the option agreement
was entered into, which means, so the
applicant submits, that the Ordinance is not applicable for this
reason as well. This is
denied by the first respondent, who contends,
rightly so, in my view, that this assertion by the applicant flies in
the face of
clause 4.1 of the option agreement
(vide
supra).
The applicant opted not to reply to the first respondent's replying
affidavit. Instead it opposed the first respondent's
application for
leave to file the supplementary answering affidavit on the basis of
what I can only term technical defences. The
applicant objects in the
main to the admission of the supplementary answering affidavit
because it does not comply with the procedural
requirements of the
Uniform Rule of Court 6 and because the 'filing of such supplementary
affidavit' caused the applicant prejudice.
[14]. In
terms of Uniform Rule of Court 6(5)(e), a Court 'may in its
discretion permit the filing of further
affidavits.' There are
normally three sets of affidavits in motion proceedings. The court
will exercise its discretion in permitting
the filing of further
affidavits against the backdrop of the fundamental consideration that
a matter should be adjudicated upon
all the facts relevant to the
issues in dispute. See:
Dickinson
v
South African General
Electric
Co
(Pty) Ltd,
1973 (2) SA 620
(A) at 628F. It is
for the court to exercise the discretion. It is only in exceptional
circumstances that a fourth set of affidavits
will be received .
Special circumstances may exist where something unexpected or new
emerged from the applicant's replying affidavit.
It is essentially a
question of fairness to both sides as to whether or not further sets
of affidavits should be permitted.
[15].
There should in each case be a proper and satisfactory explanation,
which negatives
ma/a fides
or culpable remissness, as to why
the facts or information had not been put before the court at an
earlier stage, and the court
must be satisfied that no prejudice is
caused by the filing of the additional affidavits which cannot be
remedied by an appropriate
order as to costs.
[16].
Applying these principles
in causa ,
I am satisfied that the
first respondent has made out a proper case for leave to file the
supplementary answering affidavit. What
weighs heavily on my mind in
that regard is the fact that the said affidavit was delivered shortly
after the filing of the applicant's
replying affidavit, which means
that the applicant had more than sufficient time to file its own
supplementary affidavit if it
deemed it necessary. It chose not to do
so. I am also of the view that the applicant should pay the cost of
the said application.
[17].
The result of my aforesaid ruling is that there are a number of facts
which are undisputed by the
applicant. I have alluded to those facts
above. Importantly, the option agreement was concluded between the
applicant and the first
respondent after the first respondent had
taken steps to establish a Township. The properties which were the
subject of the option
agreement were erven which would be part of the
Township to be established by the first respondent. The properties
which the applicant
were entitled to purchase in terms of the option
agreement did not constitute all of the land which would have
comprised the Township
to be established. This means that the option
agreement on which the applicant relies to establish its
prima
facie
right to claim an interdict is unenforceable, of no force
and effect and void
ab initio.
Therefore, the first respondent
does not have a
prima facie
right on which to found the
interim interdictory relief claimed by it.
[18]. I
am, in any event, not persuaded that the applicant has satisfied the
other requirements for an interim
interdict, namely: that it is
threatened with immediate and irreparable harm; that it has no
alternative remedy, and that the balance
of convenience favours it.
[19]. All
of the issues relating to these three requirements for the interdict
are closely tied in with
the question of balance of convenience and
prejudice. An aspect which weighs heavily on my mind is the fact that
the applicant
since 2011 has done very little to pursue its 2004
action against the first respondent. The question is this: what
prevented the
applicant since 2011 from pursuing to finality the
action it instituted as far back as 2004.
[20].
There is, in my judgment, no reason in principle why the applicant
can claim the interim interdict,
which it seeks in this application.
[21]. The
application of the applicant therefore stands to be dismissed. This,
in turn, means that the application
against the second respondent
also stands to be dismissed.
Costs
[22]. The
first respondent has been successful in opposing the applicant's
claim against it. This means
that, applying the general rule, the
first respondent is entitled to a cost order.
[23].
I can see no reason to deviate from the general rule and cost should
therefore be awarded in favour
of the first respondent against the
applicant.
Order
In
the result, I make the following order:-
1.
The
first respondent is granted leave to file its supplementary answering
affidavit dated the 26
th
February 2018.
2.
The
applicant shall pay the first respondent's cost of the application
for leave to file the additional affidavit.
3.
The
applicant's application against the first and second respondents be
and is hereby dismissed.
4.
The
applicant shall pay the first respondent's cost of this opposed
application.
LR ADAMS
Judge of the High Court
Gauteng
Division, Pretoria
HEARD
ON:
12
th
March 2019
JUDGMENT
DATE:
14
th
March 2019
FOR
THE APPLICANT:
Adv LC Leysath
INSTRUCTED
BY:
Wayne Teich Attorneys
FOR
THE FIRST RESPONDENT:
Adv D T v R Du Plessis SC
INSTRUCTED
BY:
Deon Rens Attorneys
FOR
THE SECOND RESPONDENT No appearance
FOR
THE THIRD RESPODENT
No appearance