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[2017] ZAFSHC 158
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Free State Agriculture v President of the Republic of South Africa and Others (A96/2016) [2017] ZAFSHC 158 (14 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
A96/2016
In
the matter between:
FREE
STATE
AGRICULTURE
Appellant
and
THE
PRESIDENT OF THE REPUBLIC OF
1
st
Respondent
SOUTH
AFRICA
MINISTER
OF
POLICE
2
nd
Respondent
MINISTER
OF DEFENCE AND MILITARY VETERANS
3
rd
Respondent
MINISTER
OF HOME AFFAIRS
4
th
Respondent
THE
PREMIER, FREE STATE PROVINCE
5
th
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL
6
th
Respondent
FOR
POLICE, ROADS AND TRANSPORT
FREE
STATE PROVINCE
NATIONAL
COMMISSIONER, SOUTH
7th Respondent
AFRICAN
POLICE SERVICES
PROVINCIAL
COMMISSIONER, FREE
8th Respondent
STATE
PROVINCE, SOUTH AFRICAL POLICE
SERVICE
MINISTER
OF AGRICULTURE, FORESTRY
9th
Respondent
AND
FISHERIES
MINISTER
OF PUBLIC WORKS
10th Respondent
MEMBER
OF THE EXECUTIVE COUNCIL
11TH
Respondent
FOR
AGRICULTURE AND RURAL DEVELOPMENT
FREE
STATE PROVINCE
MEMBER
OF THE EXECUTIVE COUNCIL FOR
12th Respondent
PUBLIC
WORKS
MINISTER
OF INTERNATIONAL RELATIONS
13th Respondent
AND
CO-OPERATION
MINISTER
OF FINANCE
14th Respondent
CORAM:
MUSI AJP, MATHEBULA J, LOUBSER AJ
HEARD
ON:
27 FEBRUARY 2017
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
14 SEPTEMBER 2017
[1]
This is an appeal against a judgment and order by Moloi J, with leave
of the learned judge, in which he dismissed the appellant’s
application with costs and granted the respondent’s counter
application with costs. In a well-reasoned and careful
judgment
the learned judge concluded that the appellant has not proved that
the Third Respondent failed to comply with the court
order dated the
20th of September 2012. Further that the agreement
entered into with the Tenth Respondent was void
ab initio as a
consequence of impossibility of performance.
[2]
The genesis of the dispute between the parties is the terrible state
of the road alongside the Caledon River. The river
serves as
the natural border between the Republic and the Kingdom of Lesotho.
This has been a source of consternation for
the farming community
alongside the border who experienced countless problems of cattle
rustling, drug trafficking, vandalism of
property and other illegal
activities. These were perpetrated by Basotho and South
Africans. The prevailing conditions
of the road made the
containment and/or elimination of these activities a thorny issue for
those communities.
[3]
The parties held a series of meetings and entered into protracted
negotiations in trying to resolve the issue. This culminated
in
an agreement being reached between the appellant and the Third as
well as the Tenth Respondents which was made an order of court
under
case number 1751/2009 on the 17
th
June 2010. The respondents breached the agreement. The
appellant launched another application under case 170/2012 which
was
settled and made an order of court on the 20
th
September 2012. The respondents breached the agreement because
of non-performance. This resulted in the appellant launching
the application which is the subject matter of this appeal.
[4]
The relevant clauses of the agreement in particular clauses
4.1
to 4.3
read as follows:-
“
4.1The
DPW will, over the 2012/2013, 2013/2014 and 2014/2015 financial
years, assume responsibility for constructing / repairing
the patrol
road so that by the end of June 2015 at the latest, the patrol road
will be capable of being used effectively for the
patrol of the
Lesotho / Free State border by any 4 x 4 vehicle including five (5)
ton SAMIL 20 4 x 4 vehicles.
4.2
The
design and specification for the repair of the patrol road will be
completed by the DPW before 15 October 2012.
4.3The
DPW will, through the currently applicable supply chain procurement
processes, appoint suitable private contractors to perform
the work
necessary to repair the road in accordance with the relevant design
and specification either in small parcels of work,
or as a single
contract for the entire patrol road. To this end, the DPW will,
initiate the relevant procurement processes
by no later than 15
November 2012. Upon completion of the repairs of the patrol
road, the DPW, as custodian of immovable
State assets, will ensure
that the patrol road is appropriately maintained as the circumstances
require”.
[5]
Mr van Rhyn
raised a three pronged argument in contending that the court a quo
erred in dismissing the application and granting
the counter
application with costs. First, he submitted that the Third and
Tenth Respondents have not demonstrated that Messrs
Geldenhuys and
Delport possessed the necessary authority to depose to the affidavits
on behalf of the respondents. Both were
not part of the team
when the agreement was drafted and subsequently made an Order of
Court. Second, the court a quo could
not have concluded that
the agreement was void
ab
initio
because on the evidence before the court there was no basis for such
a conclusion. Third, he argued that legislation existed
empowering the Premier of the Province to fix the road or the
Minister responsible for Environmental Affairs to promulgate the
necessary regulations to facilitate compliance with the agreement.
[6]
It was his submission that, the main issue was whether the agreement
was objectively void
ab
initio
.
He contended that the respondents have been in contempt since the
31
st
August 2012. At no stage did the respondents inform the
appellant that they encountered difficulties with the time frames.
It appears that the only reason for failing to comply with the
agreement related to funding. Although the respondents through
the State Attorney acknowledged breach of contract, they did not
elaborate on any other aspect including that it was objectively
void
ab
initio
.
The respondents did nothing about the application that was served on
them. Accordingly the respondents had ample time
from the 31
st
August 2012 to perform and were well resourced with the necessary
skill and advice as a party to the agreement.
[7]
It was his further submission that the invocation of the
National
Environmental Management Act 107 of 1998
(NEMA)
was a spurious attempt at demonstrating impossibility of performance.
However he conceded that the order for contempt of
court is not
easily granted and implored us to consider setting new dates for the
respondents to comply with the agreement alternatively
order specific
performance.
[8]
Mr Rip submitted that both Geldenhuys and Delport were employees of
the respondents who were responsible for the actual implementation
of
the court order. They were privy to disputes and the issues at
hand. They were better positioned to place the necessary
evidence before the court.
[9]
He submitted that the issue was whether impossibility of performance
was there or not and whether there was a deliberate intent
to
circumvent the agreement. He contended that the objective facts
clearly show that the respondents had every bona fide
intent to
comply with the agreement. This is demonstrated in the letter
from the Office of the State Attorney to the appellant’s
attorney dated 26 July 2013 acknowledging the breach and requesting
that the clauses relating to mediation should not be invoked.
Further it was envisaged by the parties that the patrol road may have
to be constructed or repaired. In their quest to comply
about
120 kilometres out of 500 kilometres of the road was repaired in the
low lying Wepener area.
[10]
He pointed out that the respondents bona fide spent time and
resources to construct/repair a sustainable road that will be
utilised for what it was intended for. The maps were compiled
to identify the farms, the distance in kilometres measured
and
thorough assessment of what needed to be done was embarked upon.
The Delta Report stated clearly the challenges and concluded
that the
link between the time agreed upon and what had to be done could not
be met by the respondents.
[11]
The argument that the
affidavits of both Geldenhuys and Delport should be struck out as
both have failed to allege the necessary
authority to act for
respective Ministers and that no confirmatory affidavits have been
filed by the latter was rejected correctly
by the learned judge.
This matter was considered and conclusively decided upon in
Eskom
v Soweto City Council
1992 (2) SA 703
(W).
On
page 705 at paragraph F-G the court said the following:-
“
The
developed view, adopted in Court Rule 7(1), is that the risk is
adequately managed on a different level. If the attorney is
authorised to bring the application on behalf of the applicant, the
application necessarily is that of the applicant. There is
no need
that any other person, whether he be a witness or someone who becomes
involved especially in the context of authority,
should additionally
be authorised. It is therefore sufficient to know whether or not the
attorney acts with authority”
The
above was cited with approval in
Ganes
and another v Telecom Namibia Ltd
2004 (3) SA 615
and
Unlawful
Occupiers School Site v City of Johannesburg
2005 (4) SA 199
(SCA) paragraph 13 -15
.
[12]
The learned judge correctly rejected the argument of the appellant in
that this matter did not concern the principal agent
relationship.
The officials concerned were closely involved in the matter and
responsible for the implementation of any decision
that had been
taken in the interaction of the parties. I find no merit in the
submission that the court a quo erred on this
aspect.
[13]
Contempt of court was
defined as “…
the
commission of any act or statement that displays disrespect for the
authority of the court and its officers acting in an official
capacity”
.
See
Nthabiseng Pheko and 776 others v Ekurhuleni Metropolitan
Municipality and 1 other
2015 (5) SA 600
(CC) at paragraph 28
.
The test for contempt of court was laid in
Fakie
N.O. v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)on page 333 at
paragraph 9
as
follows:-
“
The
test for when disobedience of a civil order constitutes contempt has
come to be stated as whether the breach was committed ‘deliberately
and mala fide’. A deliberate disregard is not enough, since the
non-complier may genuinely, albeit mistakenly, believe him-
or
herself entitled to act in the way claimed to constitute the
contempt. In such a case good faith avoids the infraction. Even
a
refusal to comply that is objectively unreasonable may be bona fide
(though unreasonableness could evidence lack of good faith)”.
[14]
The primary object of the proceedings of this nature is to safeguard
the authority of the courts. On the papers filed
by the
appellant, one cannot infer
mala
fides
on the part of the respondents. The respondents did perform but
failed to do so adequately as provided in the order.
The
parties are in agreement that approximately 50 km was fenced and 70
km repaired out of 500 kilometres by the Third respondent.
This
is in the Southern area where the topography is flat and accessible
unlike the mountainous area in the Northern part.
The Tenth
respondent also expended time and resources to compile maps,
identifying owners of farms etc. in preparation to comply
with the
order to construct/repair the patrol road. The learned judge
was correct in finding that the appellant has not succeeded
in
proving that the Third respondent was in contempt for not complying
with the court order. This decision is inextricably
linked to
the conclusion on whether it was objectively impossible for the Tenth
Respondent to perform.
[15]
The learned judge had concluded that the respondents could not comply
because of the “
plethora
of legislation”
that they had to navigate through in order to achieve the goals set
in the order. Mr van Rhyn argued that legislation was
in place
to enable the Third and Tenth Respondents to comply with the court
order. This included but not limited to Section 17(1)
of the Road
Ordinance Act 4 of 1968 which read as follows:-
“
(1)
The Director may, after consultation with the owner or occupier of
land,
enter upon such land –
a)
to
take measurements or make surveys or observations or carry out any
inspections for the purpose of construction or the maintenance
of a
road or pont for any purpose incidental thereto; and
b)
to
take possession of so much thereof as may be necessary for the
construction or maintenance of a public road or pont or for any
purpose incidental thereto”
;
and
Section
88 of the Defence Act 42 0f 2008 also read as follows:-
“
(1)
Any member of the Defence Force may enter upon private land within a
strip not exceeding 10 kilometres
in width along any border of the
Republic for the purposes of national border control with the
approval of the lawful occupier
of the land.
(2)
If the approval is being withheld unreasonably or cannot be obtained
after a reasonable attempt,
the Minister may give written permission
for such entry.
(3)(a) No
member may enter any land unless the occupier has given his or her
approval or unless the occupier has been
given a copy of the
Minister’s permission to enter such land.
(b)
If the occupier in question cannot be traced a copy of the permission
must be affixed at a prominent place
on the land before the border
control may be undertaken.
(4)
The Minister must prescribe the conditions under which compensation
may be claimed or paid
to such occupier for any damage or loss
sustained as a result of any entry in terms of this section”.
[16]
In terms of the
National Water Act 36 of 1998
the Minister of Water
and Sanitation is the custodian of all water resources within the
Republic. The Minister has the overall
responsibility for and
authority over water resource management, including the equitable
allocation and beneficial use of water
in the public interest.
This includes water use which is defined broadly, and includes taking
and storing water, activities
which reduce stream flow, water
discharges and disposals, controlled activities (activities which
impact detrimentally on water
resource), altering a watercourse etc.
Section 67(1)
provides that:-
“
(1) in an
emergency situation, or cases of extreme urgency involving the safety
of humans or property or the protection of a water
resource or the
environment, the Minister may-
(a)
dispense
with the requirements of this Act relating to prior publication or to
obtaining and considering public comment before any
instrument
contemplated in section 158(1) is made or issued;
(b)
dispense
with notice periods or time limits required by or under this
Act;
(c)
authorize
a water management institution to dispense with –
(i)
the
requirements of this Act relating to prior publication or to
obtaining and considering public comment before any instrument
is
made or issued; and
(ii)
notice
periods or time limits required by or under this Act.
(2)Anything
done under subsection (1) –
(a)
must be withdrawn or repealed within a maximum period of two years
after the emergency situation
or the urgency ceases to exist; and
(b)
must be mentioned in the Minister’s annual report to
Parliament.”
[17]
These pieces of legislation stipulate that the owner or occupier of
the land must be consulted, approval sought and obtained
before any
entry can be embarked upon for the purposes provided in the law.
It will be simplistic to conclude that this is
an easy process which
can be undertaken within a period of approximately three (3) years.
This aspect will be discussed more
fully in the following
paragraphs. Those afforded the power to apply these laws must
do so in a transparent, equitable and
reasonable manner based on
sound reasons. If such an approval is not granted for whatever
reason, then involved litigation
may ensue resulting in further
delays. However it is unlikely that any farmer whether a member
of the appellant or not can
withhold permission to repair or
construct the road meant to benefit the entire community. In
addition some farms are situated
near watercourses or sensitive
environments. Any party undertaking development in such area
must obtain permission from the
Ministry of Water and Sanitation in
terms of the
National Water Act 36 of 1998
. Undoubtedly public
participation in matters of this nature is of cardinal importance.
[18]
The
National Environmental Management Act 107 of 1998
imposes a duty
of care on every person including State Organs to respect and protect
the environment for the benefit of present
and future generations
through law and other measures.
Section 28
(1) provides as
follows:-
“
Every person
who causes, has caused or may cause significant pollution or
degradation of the environment must take reasonable measures
to
prevent such pollution or degradation from occurring, continuing or
recurring, or, in so far as such harm to the environment
is
authorised by law or cannot reasonably be avoided or stopped, to
minimise and rectify such pollution or degradation of the
environment”.
[19]
The safeguarding of the borderline is an important matter but not an
emergency situation in this regard. The parties
have been in
negotiations for few years in trying to find an amicable solution.
The provisions of Section 30A(7) of
the National Environmental
Management Act 30 of 2013 defines an emergency situation as a
“
situation
that has suddenly arisen that poses an eminent and serious threat to
the environment, human life or property, …”
The situation in this matter can be described as serious but not to
be categorised as an emergency. The applicant conceded
that the
efforts of the respondents by increasing patrols and repairing part
of the road have to an extent alleviated the problem.
I
disagree with the notion that recognizing the situation as one that
needed to be rectified on an immediate basis without delay
suddenly
elevated it to an emergency situation. The meticulous manner in
which the reports were compiled after a thorough
assessment indicate
its importance and that it is in the public interest that it must be
attended to.
[20]
Regulation 16A6.1 and 16A6.4 published in terms of the
Public Finance
Management Act 1 of 1999
entitles an Accounting Officer to procure
goods or services by other means where it is not practically possible
to follow the normal
procurement procedure(s). In addition
where the interests of national security dictates,
Section 3
of the
Preferential Procurement Policy Framework Act 5 of 2000
provides for
the exemption of an Organ of State to comply with the requirements.
Public Finance issues are matters of national
importance which must
be approached with caution. It is encouraged and expected that
there must be strict adherence to the
prescripts of the law in order
to ensure transparency, accountability and achievement of good
governance in dealing with the public
purse. In this matter,
procurement processes could not be initiated before the
necessary designs and specifications
were in place. The Third
and/or the Tenth Respondent could not have been able to procure what
they did not know or budgeted
for and without proper reasons.
Although there are provisions for deviation, this matter did not
warrant such as it did not
meet the requirements of emergency or
threat to national security. This is the plethora of
legislation that the court a quo
referred to and I agree. I
respectfully disagree with the submissions of the counsel for the
appellant that these laws should
be applied because they exist.
[21]
The respondents contended that the entire agreement was a nullity
ab
initio
.
The learned judge adopted the approach in
Vogel
N.O. v Volke152
1977 (1) SA 537
confirmed in Sasfin (Pty) Ltd v
Beukes
1989 (1) SA 1
(A)
that
“
regard
must be had to the probable intention of the parties as it appears in
or can be inferred from the terms of the contract as
a whole”
.
In this matter he concluded that it was objectively impossible for
the respondents to comply with the time frames.
In their
seminal work “
Christies
– The Law of Contract in South Africa” by R H Christie
and G B Bradfield (6
th
edition) on page 97
,
the requirements for the principle were tabulated as follows:-
“
First,
the impossibility must be absolute as opposed to probable.
Second,
the impossibility must be absolute as opposed to relative.
Third, the
impossibility must not be the fault of either party.
Fourth,
the principle must give way to the contrary common intention of the
parties”.
On
page 99 the authors wrote that “
An agreement that, by
consent, has been made an order of court will be no more binding than
any other contract if it proves to be
affected by initial
impossibility”
.
[22]
The appellant submitted that throughout the respondents did not raise
the issue of impossibility of performance. At best
they did
nothing and raising this issue at this stage is an attempt to resile
with impunity. In substantiating his submission,
Mr van Rhyn
referred to the depth of legal expertise in the form of six senior
counsel together with attorneys who assisted the
parties in carving
out the agreement. However, he conceded and correctly so, that
despite their wealth of experience they
may have erred on this one.
[23]
The central issue in this matter is the time frames that were not met
by the respondents. As the parties engaged further
on the
matter, the magnitude of the task ahead of them became apparent.
In short the reality struck home. The provisions
regarding
compliance with legislation in particular National Environmental Act
107 of 1998 were overlooked. A thorough Scoping
and
Environmental Impact Assessment Process had to be undertaken.
This required that activities like construction of canals,
channels,
bridges and dams had to be embarked upon. It also involved
navigating through a myriad of legislation like the
National Water
Act 36 of 1998
and Mineral and Petroleum Resources Development Act 28
of 200 together with Regulations thereof.
[24]
The
Delta
Report
titled
Lesotho
Border Roads Project Execution Plan
compiled by experts shed light about the magnitude of the project.
The purpose of the report commissioned by the Tenth Respondent
was
“
to
perform
town planning work, as well as related work, in order to facilitate
the clearance of a site for development purposes”
.
The report identified no less than ten (10) key stakeholders other
than the land owners or members of the public who may
have an
influence in the repair and/or construction of the road. The
comprehensive report is part of the record contained
in pages 579 –
711. Perhaps the parties believed that they had a plan to
circumvent it. There was also the issue
of servitudes on the
farms and permission that had to be sought from individual
landowners. Debushing of the various parts
also crept in as one
of the aspects to be considered. This made the compliance with
the court order ever more complex and
compliance with the time frames
impossible.
[25]
I disagree with the submission of counsel for the appellant that the
central government is powerful and can pass the necessary
regulations. Laws are not applied at the whim of the empowered
person or body. Consultation and public participation
in
matters of this nature are cardinal. If the person or body acts
to the contrary, it may be many years before the road
is
constructed/repaired because of litigation.
[26]
It appears that both parties did not think through the agreement
properly before placing it before the court. The issue
raised
in the Delta Report were in existence from the beginning not a later
stage. Their timelines were just too tight. Clause
4.1
quoted in paragraph 4 stated that the road must be capable of being
used effectively by the end of 2015. The Tenth Respondents
informed the appellant that it was impossible to comply with the
court order through a letter dated the 31
st
October 2014. The gist of the letter is that the Tenth
Respondents does not exclusively use 4 x 4 motor vehicles and that
the costs of acquiring such motor vehicles to maintain the road were
also prohibitive in the circumstances. As a result the
Tenth
Respondent has decided to “
construct
a road that can be used for the intended purposes”
.
[27]
In order to comply with the Court Order, the project in its
pre-planning stage was to continue for approximately eighteen (18)
to
twenty four (24) months before everything could be in place.
This was the time required after its inception and status
quo
analysis which was expected to last for approximately sixteen (16)
weeks. About fifty two (52) weeks was to be set aside
for all
the approvals and legal authorisations to be in place. The next
phase being the submission of the Final Clearance
Report was also
expected to take another fifty two (52) weeks. It therefore
stands to reason that the clause that the Third
and/or Tenth
Respondent must initiate procurement processes within thirty nine
(39) days of the court order was a serious oversight
on both
parties. As it is their negotiated agreement, they both
stand or fall by it. The appellant cannot dissociate
from it
when the impossibility of performance was in existence at the initial
stages.
[28]
On behalf of the appellant, we were implored to set new time lines or
order specific performance. I am of the view that
this will be
tantamount to negotiating a new agreement for the parties
alternatively usurping the powers of the executive.
In
the circumstances prevailing in this matter this court is not
competent to make such an order. Therefore, I do not find
any
merit in that submission.
[29]
This matter had a long and chequered history. The parties had
been engaging each other over a long period with mixed
results.
It appears that they were all eager to reach a settlement at all
cost. In his assessment of the evidence before
him the learned
judge concluded that the oversight by both parties “
brought
about an absolute impossibility as opposed to probable or relative
impossibility and cannot be attributed to any party’s
fault”
.
I respectfully agree with him. This appeal ought to fail.
[30]
The general rule is that the costs follow the event. The
discretion to award costs must be exercised judicially pertinently
to
achieve fairness and justice to all parties. In this matter, I
cannot find any reason to deviate from the principle.
[31] The following order
is made:-
1.
The
appeal is dismissed.
2.
The
appellant is ordered to pay the costs of the appeal including the
costs of two (2) Counsel.
____________
MATHEBULA,
J
I
concur,
_________
MUSI,
AJP
I
concur,
_____________
LOUBSER,
AJ
On
behalf of applicant:
Adv. AJR van Rhyn (SC)
Adv. JMC Johnson
Instructed
by:
Naudes
On
behalf of respondents:
Adv. MM Rip (SC)
Adv. S Webster
Instructed
by:
State Attorney
/roosthuizen