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[2019] ZANCHC 31
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Cordier v Poolman (1489/2019) [2019] ZANCHC 31 (23 July 2019)
IN THE HIGH COURT OF SOUTH
AFRICA,
NORTHERN CAPE DIVISION,
KIMBERLEY
Case
No: 1489/2019
Reportable/Not
reportable
In
the matter between:
PIET
SAGARIAS CORDIER
APPLICANT
and
HEINRICH
GEORGE POOLMAN
RESPONDENT
Heard:
12 July 2019
Delivered:
23 July 2019
JUDGMENT
Phatshoane
J
[1]
On
12 July 2019 Piet Sagarias Cordier, the applicant, approached this
Court on an urgent basis for an order substantially in the
following
terms:
1.1
That
Mr Heinrich George Poelman, the respondent, be interdicted, pending
the finalisation of the action instituted by the applicant
in this
Court under Case No:1483/2016, from removing and/or taking possession
of and/or selling and/or advertising the hunting
of and/or permitting
the shooting of any game situated on the two farms known as:
1.1.1
The Remainder of Farm Marthasdale Number
10, Barkley West District, Northern Cape, and
1.1.2
Farm Helpmekaar, Barkley West District,
Northern Cape.
1.2
That the respondent remove any and all
advertisements and or notices advertising the hunting of the
aforementioned game.
[2]
The
applicant and the respondent are involved in various litigation in
this Court. The present application is related to the action
instituted by the applicant under Case No1483/16 on 12 July 2016 in
which he claims against the respondent payment of an amount
of R200
000.00, interest on that amount, and costs.
[3]
During
April 2014 at Kuruman the applicant and the respondent entered into a
verbal agreement in terms of which the applicant purchased
from the
respondent game as follows: 30 Oryx, 28 Blesbucks, 26 Springbucks,
four Impala and two Ostriches in the amount of R200
000.00. There are
disputes of fact between the parties on whether the purchase price
was to be paid in instalments; whether the
applicant has paid the
full purchase price; and whether the ownership of the game would pass
upon the full and final payment of
the purchase price.
[4]
The
applicant alleges that on 11 April 2016 he made the final payment in
the amount of R35 000.00 but because of the protracted
litigation and
animosity between them the respondent barred him from selling and/or
loading and/or hunting and/or collecting the
game he purchased from
the aforesaid two farms. The respondent's stance is that he did not
tender delivery of the game because
the applicant did not pay the
balance of the purchase price which would have vested him with the
ownership.
[5]
Significantly
the applicant avers that by prohibiting him from dealing with the
game, the respondent has repudiated the contract.
Therefore, he
elected to cancel same on 04 April 2014 and instituted the claim for
damages against the respondent, referred to
earlier.
[6]
Almost
three years later following the institution of the action, on 04 July
2019, the applicant received a flyer showing that the
respondent
advertised hunting packages for the game in the Kuruman and
Danielskuil areas where a hunter could buy two Oryx, one
Blesbuck and
one Springbuck to hunt for a combined amount of R12 500.00. The
advertisement triggered the filing of the present
application. The
applicant says that to the best of his knowledge the only game on the
farms belong to him. His impression is that
the advertised game are
his and fears that it will be sold and hunted to his prejudice.
[7]
On
the same date that the applicant received the advertisement his
attorneys directed a letter to the respondent's attorneys, Duvenhage
Van Der Merwe Attorneys, expressing the applicant's discontentment
that the respondent had offered hunting packages for the game
which
belonged to the applicant on the same farms in respect of which he
had been barred from hunting. In reply, the respondent's
attorneys
drew the applicant's attention to his particulars of claim where he
pleaded that he cancelled the sale agreement for
the game and opted
to claim damages. Their view was that in light of this the respondent
had unencumbered right to hunt on the
farms.
[8]
The
applicant contends that should the respondent allow the game to be
hunted, even assuming that he indeed cancelled the contract,
the
security he holds for his claim, in the form of the game, will be
dissipated. He says that if the game is protected against
dissipation
by means of an interdict he will be able to attach and sell it
through an auction or private treaty to recover the
purchase price he
paid and the attendant litigation costs incurred in pursuing the
claim. The counter argument by the respondent
is that the applicant
is not entitled to hold as security the property which does not
belong to him.
The
point
in limine
[9]
The respondent explained that the
Heinrich Poelman Trust, IT 11738/97 (the Trust) is the owner of the
farms. He intimated that a
vast spectrum of the game species, which
belong to the Trust, roam the farms. These includes Kudu, Gemsbuck,
Blesbuck, Impala,
Springbuck, Warthog, Duiker, Steenbuck and
Ostriches which he manages with the other two trustees for the
benefit of the Trust
beneficiaries.
[10] The
game in dispute, according to the respondent, form but a small
fraction of the multitude game on
the farms. He argued that the
Notice of Motion casts the net very wide that it will effectively
prohibit him and the Trust to derive
any income from the hunting
activities. He contended that the Trust has a direct and substantial
interest in the relief sought
and therefore a necessary party to
these proceedings. The applicant's failure to join the Trust as a
respondent amounts to non-joinder
which is fatal to this application,
the argument continued.
[11] The
applicant conceded that the prayers sought in the Notice of Motion,
as presently formulated, may
have a far-reaching effect. However, he
argued, that the game on which this application has a bearing has
been identified in his
papers. He submitted that the broader
application of the prayers can be remedied by restricting the
operation of the interim interdict
solely to the game in dispute in
the action. That way, he contended, the Trust would be eliminated as
a party with substantial
interest in the outcome of this application
as it would not be affected by the modified order. It is not
necessary to belabour
the issue as, in my view, if the order as
initially sought is amended as proposed it would curb any potential
prejudice that may
be suffered by the Trust.
The question of urgency
[12] Rule
6(12)(b) requires of an applicant who approaches the Court on an
urgent basis to set out explicitly
the circumstances rendering the
matter urgent, and the reasons why it will not be afforded
substantial redress at a hearing in
the ordinary course. I take the
view that the application is sufficiently urgent. All the necessary
affidavits have been exchanged
between the parties to enable the
Court to adjudicate upon the anti-dissipation relief sought.
The interim interdict
[13]
The requirements for an interim
interdict are trite. In order to succeed with the application the
applicant must show (a) that he/she
has a
prima
facie
right even though open to some
doubt; (b) that there is a well-grounded apprehension of irreparable
harm to the applicant if the
interim relief is not granted and he/she
ultimately succeeds in establishing the right; (c) that the balance
of convenience favours
the granting of interim relief; and (d) that
the applicant has no other satisfactory alternative remedy available.
[14]
The applicant contends that he has a
'clear right' because he is the rightful owner of the game. The
immediate difficulty with this
proposition is that, on his own
version as contained in the founding affidavit, he cancelled the
agreement in terms of which he
purchased the game from the respondent
and instituted an action claiming damages. In his amended particulars
of claim filed in
the action he pleads:
'10
Weens die verweerder se versuim om toesteming te verleen aan die
eiser om die
wild te skiet, het verweerder die mondelingse
koopooreenkoms gerepudieer.
11
Die Eiser aanvaar die verweerder se repudiasie van die mondelingse
koopooreenkoms
soos deur die partye gesluit op of ongeveer 04 April
2014.
Na aanleiding van die verweerder se repudiasie soos voormeld
het Eiser die mondelingse Koopooreenkoms tussen die eiser en die
verweerder
gekanselleer, alternatiewelik, kanseller die Eiser die
mondelingse koopooreenkoms tussen die eiser en die verweerder
hiermee.'
(My own emphasis)
The respondent pleads as follows
in reply:
'The defendant denies that he
repudiated the oral agreement and denies that the plaintiff was (and
is) entitled in law or in fact
to cancel the oral agreement.'
[15]
It
is not necessary for present purposes to decide on the validity of
the applicant's alleged cancellation as it may be an issue
for
determination at the hearing in due course. The notice of a decision
to cancel the contract may be communicated in a summons
or an
application.
[1]
Cancellation extinguishes the obligation(s) arising from the
contract.
[2]
Once the innocent party has cancelled a contract, he or she can no
longer enforce it and vice versa.
[3]
Whether or not an innocent party has made an election to cancel is a
question of fact to be decided on the evidence.
[4]
[16]
The
issue of the alleged cancellation of the contract need not be
traversed at any great length. The point is that the applicant
did
not claim specific performance in the form of delivery of the game in
the action; he merely sought restitution, that is, he
be reimbursed
the purchase price he alleges he paid to the respondent together with
interest. He can therefore not claim to be
having a clear right. In
any event, there is a dispute between the parties on whether he paid
the full purchase price which would
have entitled him to ownership of
the game. Motion proceedings were not designed to resolve disputes of
fact. An applicant who
seeks final relief on motion must accept the
version of his opponent in the event of a conflict, unless the
latter's allegations
do not raise a real or bona fide dispute of
fact, or are so far-fetched or clearly untenable that the court is
justified in rejecting
them merely on the papers.
[5]
In my view, it cannot be said that, on the papers as they stand, the
respondent's version, that the applicant has not paid the
full
purchase price, is palpably false and falls to be rejected.
[17]
The
current position is that the Trust owns the bulk of the game on the
farms and engages in hunting activities in order to derive
an income
for the benefit of the Trust beneficiaries. The respondent explained
that if the numbers of the game are not controlled
the farms will
suffer irreparable harm in the form of over-grazing, which will have
an adverse effect on the lease agreement the
trust has with its
tenants who are cattle farmers. Having said this, I am persuaded that
the balance of convenience does not favour
the applicant. In my view,
he will not suffer any greater harm than the respondent should the
interdict not be granted. By his
own
ipse
dixit,
he chose not to keep the
contract alive until the respondent had counter-performed. As a
consequence of this, I am unable to discern
any logic in preventing
the respondent from dealing with the game.
[18]
To
buttress his argument that the security he holds for his claim, in
the form of the game, will be dissipated the applicant relies
on the
inference he drew that the respondent is either acting maliciously,
disingenuously or is in financial strain which factors
necessitate
the sale of the game. Apart from this inference, which is not
supported by any evidence, nowhere in the founding affidavit
does the
applicant say that the respondent will be unable to satisfy any
judgment of this Court should an adverse order be made
against the
respondent in the action. Neither is the applicant saying that
execution against any of the respondent's assets will
be impossible.
In the final analysis, it is axiomatic that the applicant has an
alternative remedy in the form of a claim for damages
which he has
already instituted against the respondent.
[19]
On
the whole, I am driven to the conclusion that this application is
ill fated as it falls far short of the requirements for
interim
relief pending the outcome of the action. Therefore, it stands to be
dismissed. There is no reason why costs should not
follow the result
on party and party scale. In the result I make the following order.
Order:
1.
The application is dismissed with
costs.
MV
Phatshoane J
APPEARANCES:
FOR
THE APPLICANT: Adv Ploos Van Amstell
Instructed by Hugo Mathewson & Oosthuizen Inc.
FOR
THE RESPONDENT: Adv Eillert
Instructed by Duncan & Rothman Inc.
[1]
LAWSA, Third Ed, Vol 9, at 325 para 425
[2]
LAWSA, Third Ed, Vol 9, at 276 para 385
[3]
LAWSA, Third Ed , Vol 9, at 313 para 418
[4]
Peters and others NNO v Schoeman and others
[2001] 1 All SA
155
(A) at 160 para 12; 20011 SA 872 (SCA).
[5]
Minister of Home Affairs v Ruta
2018 (2) SA 450
(SCA) at 453
para 15