About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 223
|
|
Moloi N.O and Another v Premier of the Free State and Others (5556/2017) [2019] ZAFSHC 223 (26 November 2019)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
No: 5556/2017
In
the matter between:-
MPHO
SARA MOLOI N.O.
1
st
Applicant
MPHO
SARAH MOLOI
2
nd
Applicant
And
THE
PREMIER OF THE FREE ST ATE
1
st
Respondent
MEC:
PUBLIC WORKS & INRASTRUCTURE
FREE
STATE PROVINCE
2
nd
Respondent
MEC
FOR HEALTH FREE STATE
3
rd
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
4
th
Respondent
HEARD:
22 AUGUST 2019
JUDGMENT
BY:
MOLITSOANE, J
DELIVERED:
26
NOVEMBER 2019
[1]
The applicant seeks an order to declare an alleged agreement in
respect of the sale of the property, Erf
1913 Botshabelo E Township,
registration Division: Thaba Nchu RD Province of the Free State(the
property), valid and binding. The
application is opposed by the First
to the Third Respondent (the respondents).No substantive relief is
sought against the Fourth
Respondent.
[2]
It is contended on behalf of the respondents that the evidence
proves that the late Mr Moloi
(the deceased) cancelled
the alleged agreement, if indeed one came into existence.
[3]
It is further contended that if a finding is made that the purported
agreement was indeed cancelled
it renders moot and legally irrelevant
the totality of the submissions by the applicants whether the
agreement could have been
concluded or alternatively was concluded or
the effect of the ruling of the Public Protector.
[4] I
agree with the submissions by the respondents as set out in paragraph
3 above and as a preliminary point
for adjudication, my view is to
determine whether the purported agreement was cancelled or not. It
follows that a finding in the
positive would be dispositive of this
matter. For the discussion in this regard I will have to assume that
an agreement was validly
concluded. The applicants also sought to
file a further affidavit but that route was apparently abandoned. I
will accordingly confine
myself to the customary three sets of
affidavits filed and the submissions made.
[5] The
Fourth Respondent erroneously allocated a piece of land belonging to
the deceased to the government. The
Department of Health subsequently
erected a clinic which rendered health facilities on the said
immovable property to the community
of Botshabelo. It is the
undisputed evidence of the Applicants that the deceased made numerous
attempts with the then Bophuthatswana
government to resolve this
matter to no avail. What the deceased did in order to resolve this
issue with the then Bophuthatswana
government has not been explained
in the pleadings. The deceased did not seek to prevent or interdict
the construction of the clinic.
[6] In later
years in his quest to seek resolution of this matter the deceased
approached the Public Protector for assistance
and mediation. The
said office then issued a notice in terms of
s 7(4)
and (5) of the
Public Protector Act, 1994
addressed to the deceased, the HOD of the
Department of Public Works and its Acting Director of Legal Services.
In the subsequent
meeting presided over by an official of the Public
Protector pursuant to the said notice the First Respondent was
represented by
its HOD while the deceased was represented by his
legal representatives.
[7] The
mediation by the Public Protector culminated in a settlement
agreement in terms of which the First Respondent
undertook to
negotiate with the deceased for the sale of the said property.
[8]
Pursuant to the apparent negotiations, the HOD of the First
Respondent offered an amount of R9 500 000-00(Nine
Million
Five Hundred Thousand Rands) to the deceased for the sale of the
property which offer was accepted. It bears mentioning
at this stage
that it is the contention of the respondents that the agreement is
invalid and further that the HOD had no authority
to make such an
offer as the authority to dispose and to acquire land was vested in
the Premier of the Province in terms of the
Free State Land
Administration Act. As indicated above I refrain from pronouncing on
these contentions at this stage.
[9] It
is the case for the Applicants that the deceased signed all the
necessary papers in order to effect transfer
of the property to the
Free State government. According to the Applicants, the deceased
specifically signed the deed of sale, power
of attorney and
Regulation 68 form. Perusal of the founding affidavit reveal,
however, that no deed of sale was signed
[1]
It is also not the contention of the Applicants that the deceased
entered into a written agreement with any of the respondents
for the
sale of the property.
[10]
Non-payment of the offered amount led to an exchange of
various correspondence between the deceased’s legal
representatives
and the HOD of the First Respondent regarding
payment. The HOD of the First Respondent requested numerous
indulgences and made
certain undertakings to pay the amount offered.
That, however, never came to any fruition.
[11]
When no payment was forthcoming the legal representatives of
the deceased then sent a letter purporting to cancel the
agreement.
Adv. Masuku SC on behalf of the Applicants submits that the agreement
was revived while Adv. Snullenburg SC on behalf
of the respondents
submits that the deceased cancelled the alleged agreement.
[12]
It has to be borne in mind that there was never a written agreement
of sale of this property. The Applicants seem to rely on
a letter
written by the HOD of the First respondent making an offer of R9, 5
million. On the facts of this case it appears that
the deceased was
an ‘innocent party’ in the non-performance of this
purported agreement as the First Respondent failed
to make a payment.
Because of lack of a written agreement, there is no procedure laid
down for the cancellation of the agreement
but if a notice of
cancellation is given, as in this case, same must be clear and
unequivocal
[2]
.Such a notice of
cancellation takes effect from the date it is communicated to the
other party.
[13]
On
the 2
nd
May 2015 the deceased attorneys wrote the following letter to the
First Respondent
[3]
when no
payment was received:
1.
“
We
refer to the above and our letter of 18 February 2015.
2.
It
is with regret that your Department failed to honour the agreement we
reached. On numerous occasions, the Department requested
indulgence
to which our client reluctantly obliged.
3.
The
department on numerous occasions requested an indulgence to pay on
December 2014 to which our client agreed. The Department
failed to
honour its obligations. The department then requested an indulgence
to make payment on January 2015 to which our client
reluctantly
agreed. Your client failed to keep its undertaking. It requested
indulgence to pay on 27 February 2015. Lo and behold,
the department
failed to make such payment.
4.
It
is therefore our instruction to forthwith cancel the settlement
agreement reached between the parties
(my
emphasis). We are further instructed that the department of health
should vacate our client’s premises by no later than
Tuesday,
10 May 2015, failing which our client will institute legal
proceedings to have the department of health evicted from the
premises.
5.
We
are further instructed to demand as we hereby do, payment of R23
million for damages, inclusive of loss of income suffered by
our
client from the period the department of health has been in illegal
occupation of our client’s premises.
6.
We
are extremely disappointed by the mala fides demonstrated by the
department in this regard.
7.
Our
client’s rights are fully reserved”
[14]
In my view paragraph 4 above is crystal clear. The intention
to cancel the agreement was communicated clearly and unequivocally.
To crystallize it further, a demand was made, not of the R9, 5
million but of an amount of R23 million. A further demand was made
for eviction.
[15]
In paragraph 40 of the founding affidavit the second applicant
avers:
“
My
attorneys wrote numerous letters to the Department of Public Works
and
in
a letter dated 2 March 2015, they threatened to pull out of the
agreement
.
In a letter of the 15
th
March 2015, Public Works assured them that they were still committed
to the amicable settlement as per the agreement concluded
on 4
November 2014. Copies of various correspondence are annexed hereto
marked Ó-U’
.
[16]
The
applicants in the founding affidavit are being disingenuous. The
letter of the 2
nd
March 2015 quoted in full above is clear and unequivocal. It is not a
threat as averred by the second applicant. It has to be borne
in mind
that affidavits in motion proceedings perform a dual function,
namely, that of pleading and also of setting out the evidence
to
prove the allegations
[4]
The
letter by the Director of Legal Services written without prejudice
which was disclosed by the Applicants does not revive the
cancellation of the agreement. The horse had already bolted when same
was written. In any case that letter is just a plea to reconsider
a
cancellation. The deceased made his choice and elected to cancel the
agreement and pursue a claim of R23 million and eviction.
He is bound
by the election he made. There’s no shred of evidence before me
indicating that the agreement was revived and
this application cannot
succeed. This finding is dispositive of this matter and it is
accordingly unnecessary to adjudicate on
the validity of the
agreement, whether the HOD had the authority to enter into the
agreement and the effect of the ruling of the
Public Protector. I
cannot find a reason to depart from the practise that costs should
follow the results.
I
ORDER
1.The application is
dismissed with costs.
P.E. MOLITSOANE,
J
On
behalf of Applicant:
Adv N Snullenburg SC
With
him
Adv L Bomela
Instructed by:
The State Attorney
BLOEMFONTEIN
On
behalf of the respondent: Adv. M Khoza
Adv, Z Gumede
Instructed by:
Jan
Hugo Attorneys
BLOEMFONTEIN
[1]
See Founding Affidavit page 18 par [18]
[2]
See Putco Ltd v TV & Radio Guarantee Ltd 1985(4) SA 809 at 830E.
[3]
Annexure ‘T’page 63 of the Founding Affidavit.
[4]
Transnet Ltd V Rubenstein 2006(1) SA 591(SCA) at par [28]