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[2018] ZANCHC 68
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Coffee Beleggings (Pty) Ltd v Van der Walt and Others (1900/2018) [2018] ZANCHC 68 (21 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO: 1900/2018
In
the matter between:
COFFEE
BELEGGINGS (PTY)
LTD
Applicant
and
MICHIEL
JACOBUS VAN DER
WALT
First
Respondent
JACO
VAN DER
WALT
Second
Respondent
JOACHIM
VAN DER
WALT
Third
Respondent
JUDGMENT
O’BRIEN
AJ
1.
In this
application Johannes Adriaan Coffee (“Coffee”) in his
capacity as director of the applicant seeks an order,
on an urgent
basis, interdicting the respondents from entering the farm Vaalkop No
262 and the farm Vaalkop No 263 pending the
finalisation of an action
to rectify rental agreements in respect of both farms.
2.
The
applicant seeks further relief
pendente
lite
requiring from the respondents seven days written notice to inspect
the farms, provided that the date for such inspection not interfere
with the applicant’s farming activities.
3.
Lastly, the
applicant seeks relief
pendente
lite
prohibiting
the respondents from hunting on those portions of the farms that are
rented by the applicant in terms of the rental
agreements.
4.
The first
respondent is the registered owner of the farms 262 and 263 Vaalkop
(“the properties”). The second and third
respondents are
the sons of the first respondent who attend to the farm on a regular
basis on behalf of the first respondent becuase
the latter resides in
the Western Cape. I pause to mention that both the second and third
respondents reside at 262 Vaalkop.
Background
5.
On 20
January 2018, and at the properties, the applicant and the first
respondent entered into a written lease agreement.
6.
On 09 April
2018, the applicant entered into a written lease agreement with the
first respondent in respect of farm 262 Vaalkop.
7.
During
January 2018, the applicant took occupation of the one farm and are
currently farming with cattle and sheep on both sheep.
8.
He
complains that since the inception of the lease agreements, the
second and third respondents attended almost on a daily basis
on the
properties and acted with total disregard for his rights to privacy.
9.
During
April 2018 the second and third respondents interfered with the
applicant’s farming activities by driving up and down
the roads
with bakkies and quad bikes for no apparent reason.
10.
He alleges
that it came to his attention that the third respondent inadvertently
opened a tap of one of the dams which supply water
to his cattle
which caused the dam to empty into a field. He claims that this
caused him great discomfort and prejudice. It also
came to his
attention that the second respondent changed taps on one of the other
dams on the properties which resulted again in
making it impossible
for him to provide adequate drinking water for his cattle.
11.
During
April 2018 a police officer from Kimberly was brought to the
properties without his consent, and in contravention of the
lease
agreements hunted thereon. During this hunt, the particular police
officer shot game while the hunting season was not officially
open
resulting in illegal activity which constitutes a criminal offence.
12.
As a result
of the above actions, he caused his attorney to write a letter to the
respondents of misconduct.
13.
On 23 April
2018 the applicant’s attorney again addressed a letter to the
respondents’ attorney indicating that the
lease agreements
should be supplemented to clarify certain misunderstandings that may
result in future. It appears that both the
applicant and the
respondents were of the view that they were entitled to act in the
manner they did.
14.
The
applicant’s case is that his rights in terms of the lease
agreements should be respected. It cannot be allowed that the
second
and third respondents attend to the farm whenever it suits them. The
situation is compounded by the fact that the third
respondent suffers
from a drinking problem which makes any hunt undesirable. He claims
that on 22 July 2018 another hunt took place
on the properties which
are in clear contravention of the lease agreements.
15.
On 21 July
2018, he established that the chains to the farm gates were illegally
cut which gives them free reign over the property.
16.
In the
result, he seeks an interdict as stated above.
17.
In response
to the above allegations, the respondents allege that they in no way
interfere with the farming activities of the applicant.
The second
and third respondents make use of a route which has been used for
many years.
18.
The dam
that the applicant refers to is not for the use of cattle. The second
respondent built and watered a new dam as a kind gesture
which allows
the applicant to make use of the water. The parties never intended
the applicant to have exclusive use of the water
at one of the dams
which feed the water from a newly built dam. The water feed from one
of the dams is for the exclusive use of
the second respondent’s
home and garden. The allegations insofar as the hunting by the police
officer is concerned, are denied
in a confirmatory affidavit.
19.
The
respondents argue that the lease agreement places no impediment on
any of their hunting rights. Furthermore, they have the right
to
access to the whole farm at any time as stipulated in the lease
agreements.
20.
They
contend that no hunting camps are near any of the applicant’s
cattle. The allegation that the third respondent has an
alcohol
problem is also without foundation.
The
lease
21.
In respect
of the first agreement, the dispute revolves around clause 6.6 which
reads as follows:
“
Geen jag word
op die verhuurde eiendom toegelaat nie. Die huurder moet die
verhuurder in kennis stel en toestemming kry as hy enige
ongediertes
wil uitroei en sal toestemming daarvoor nie onredelik weerhou word
nie.
”
22.
Clause 11.1
of the first least agreement reads as follows:
“
Die verhuurder
se verteenwoordigers, trustees of begunstigdes mag te enige tyd die
plaas besoek en inspekteer met die minste onwrigting
daarvan vir die
verhuurder.
”
23.
The second
lease agreement which is headed “
Verhuurder
se reg van toegang
”
is precisely the same as the first lease agreement. However, there is
no provision relating to the hunting of game in the
second lease
agreement.
Discussion
24.
The
respondents have given an undertaking that no further hunting will be
conducted on the properties; accordingly, this issue should
not be
further entertained. Furthermore, the hunting season ended on 31
August 2018. The only issue for determination is whether
the
respondents failed to comply with clause 11.1 of the lease
agreements.
25.
The
applicant contends that the first and third respondents in
contravention of this clause conducted themselves in the manner
described above.
26.
A perusal
of this clause reflects the ambiguity thereof. Regarding this clause,
the first respondent’s representatives may
visit and inspect
the properties with the minimum disruption to the applicant. Trustees
or beneficiaries may also do so. Does this
mean that the second and
third respondents are the representatives of the first respondent?
Are they the beneficiaries of the first
respondent? The contract is
not clear. What conflates the interpretation is clause 19 which
allows the first respondent’s
son – it is not stated
whether it is the second or third respondent – who lives on the
unrented section, may stay every
second week on the farm without
paying any rent.
27.
The
applicant’s case is not clear and due to the ambiguity in
clause 11.1 unsurprisingly let to the applicant applying for
the
rectification of the lease agreements. Due to this ambiguity, there
is doubt as to who, and when, and at what time the second
and third
respondents are entitled to visit the properties. If they do so, in
my view, they would not be in breach of the lease
agreements. That is
so because there is no clarity whether they are the first
respondent’s representatives, trustees or beneficiaries
who may
at any time visit and inspect the properties. In my view, this clause
needs to be rectified setting out the exact terms
and the persons and
the times when these people may visit or inspect the farm. Due to
this uncertainty, the applicant has not established
a
prima
facie
right, and the application should be dismissed on this basis.
28.
Secondly,
the application is not urgent and should be struck from the roll due
to lack of urgency.
29.
Moreover,
the basis for the applicant’s rights to the properties is
contained in the rental agreements. Therefore, it cannot
obtain an
interim order in respect of rights that it just does not have
concerning the lease agreement.
30.
There are
numerous material factual disputes which should have been foreseen by
the applicant which is another basis for striking
this application
from the roll.
31.
Insofar as
costs are concerned the lease agreement makes provision for cost on
the magistrate’s court scale on an attorney
and client basis,
and I shall do likewise.
32.
I make the
following order:
32.1
The
application is struck from the roll for lack of urgency. Costs to be
on the magistrate’s court scale on an attorney and
client
basis.
______________
S
C O’BRIEN AJ
Date
of hearing: 23 August 2018
Date
of Judgment: 21September 2018
Obo
Applicant: Adv F.G. Janse Van Resnburg
Instructed
by: Engelsman Magabane Inc
Obo
Respondent: Mr A.G. Van Tonder
Instructed
by: Elliot Maris Wilman and Hay Attorneys