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[2016] ZAFSHC 28
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Mason v Swanepoel (4505/2013) [2016] ZAFSHC 28 (19 February 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4505/2013
In the
matter between:
DOUGLAS
MASON
Plaintiff
and
CHRIS
SWANEPOEL
Defendant
CORAM:
NAIDOO, J
HEARD
ON:
10 February 2015 and 27 October 2015. Written Heads filed 20 November
2015
DELIVERED
ON:
19 FEBRUARY 2016
[1]
The plaintiff sued the defendant for an amount of Two Hundred and
Twenty Nine Thousand Eight Hundred and Eighty Two Rand and
Sixty
Seven Cents (R229 882.67), being the cost of renovations to a
farmhouse, in respect of which the defendant granted him a
right of
occupat
ion,
alternatively, being the cost of renovations effected by the
plaintiff to the farmhouse, in consequence of a verbal agreement
between the parties. Mr DM Grewar represented the plaintiff and Mr MC
Louw represented the defendant in this court. At the
commencement of the trial, counsel informed the court that they had
agreed to separate the issues of the merits and quantum in
terms of
Rule 33(4) of the Uniform Rules of Court, and that this court is
required to adjudicate the merits only. The court is
indebted to both
counsel who submitted comprehensive written Heads of Argument in this
matter.
[2]
The plaintiff’s case is that in January/February 2011, the
defendant granted him a right of
habitatio
of a farmhouse called Wetherun (Wetherun) on the farm Pandam, in the
area of Steynsrus, Free State, on which the defendant also
lived. The
conditions of such
habitatio
are
that the plaintiff would restore Wetherun, at his cost, to its
original condition or to a habitable condition. In return, the
plaintiff would occupy the house and/or live in it for as long as he
wants. The plaintiff claims, in the alternative, that he and
the
defendant entered into a verbal agreement in about January/February
2011 in terms of which the plaintiff could occupy the farmhouse
Wetherun for as long as he wants on condition that he restores
Wetherun to its original condition or to a habitable condition.
I
pause to mention that the plaintiff is a Canadian citizen and has
temporary residence in South Africa. As a freelance journalist,
he is
obliged to travel frequently and is in South Africa for a few months
at a time.
[3] As
a result of the right of
habitatio
,
alternatively the verbal agreement between the parties, the plaintiff
undertook renovations to the farmhouse from May 2011 until
14
February 2013, during which time he expended an amount of R229 882.67
for the useful and/or necessary restoration of Wetherun.
On 14
February 2013, the defendant summarily terminated the plaintiff’s
occupation of the farmhouse, alternatively repudiated
and/or breached
the verbal agreement between them. The plaintiff’s claim is
consequently based on damages suffered as a result
of the breach of
the verbal agreement, alternatively on the unjustified enrichment of
the defendant at the expense of the plaintiff
who has been
impoverished in the amount claimed.
[4]
The defendant’s case is that the parties did enter into an
agreement but on terms different to those claimed by the plaintiff.
His version is that they agreed that the plaintiff would
restore/renovate Wetherun as claimed by the plaintiff, but that the
defendant
would not be obliged to compensate the plaintiff for any
costs incurred in such renovations, except if the farm were to be
sold.
In that event the defendant would compensate the plaintiff for
any increase in the value of the farm as a result of the renovations.
He denied being unjustifiably enriched as a result of the renovations
effected by the plaintiff. In addition, the defendant, by
way of an
amendment to his plea in September 2015, raised a special plea that
the agreement between the parties was void
ab
initio
because it did not comply with section 3 of the Subdivision of
Agricultural Land Act 70 of 1970 (the Act). The agreement was
terminable
at the instance of either party. He terminated the
agreement, as he was entitled to do, as a result of blasphemous
statements made
by the plaintiff to the defendant and his family.
[5] The issues before
this court are:
5.1
Whether the agreement concluded by the plaintiff and
defendant
is unlawful and/or void for being in contravention of section 3 of
the Act;
5.2
Whether it was express/tacit/implied condition of the
agreement that the plaintiff would be compensated upon termination
of
the contract by either party, or whether the parties agreed that
compensation would be paid to the plaintiff only upon sale
of the
farm Pandam, if there was an
increase
in the value of the farm as a result of the renovations.
5.3
Whether the defendant was entitled to cancel the agreement because
the plaintiff made certain blasphemous statements;
5.4
Whether the defendant repudiated the agreement without just cause and
is in breach thereof; and
5.5
Whether the defendant was unjustifiably enriched as a result of the
renovations to Wetherun.
APPLICABILITY
of ACT 70 of 1970
[6]
The preamble to the Act states that the purpose of the Act is
“
To
control the subdivision and, in connection therewith, the use of
agricultural land”
Section
3(d) of the Act stipulates that subject to the provisions of section
2
“
no
lease in respect of a portion of agricultural land of which the
period is 10 years or longer, or is the natural life of
the
lessee or any other person mentioned in the lease, or which is
renewable from time to time at the will of the lessee, either
by
continuation of the original lease or by entering into a new lease,
indefinitely or for periods which together with the first
period of
the lease amount in all to not less than 10 years, shall be entered
into… unless the Minister has consented in
writing”
[7]
One of the objects of the Act is to prevent subdivision of
agricultural land which results in fragmentation of the land so as
to
render farming thereon uneconomical or unsustainable. In my view, the
granting of the right of
habitatio
does not fall within the contemplation or purview of the Act. The
portion of land on which Wetherun stood was not intended to be
subdivided or to be used for the purpose of farming. The agreement
concluded by the parties does not, in my view amount to a lease
as
contemplated by the Act, which does not define “lease”.
The
New Shorter Oxford English Dictionary
defines lease as
“
A
contract between parties by which one conveys property, especially
lands (later also rights, services, etc) to the other for a
prescribed term, or at will, usually in consideration of a periodic
payment”.
[8]
This
definition of “lease” read in the context of the purpose
and objects of the Act puts the agreement between the
plaintiff and
defendant outside the scope of the Act. The evidence and the
pleadings (prior to amendment of the plea) suggest that
the
application of the Act to the agreement between the parties was
discussed when the plaintiff requested that consideration be
given to
subdividing, for his benefit, the land on which Wetherun stood.
The defendant advised him that is not possible and
that it was
probably illegal. This idea appears to have been abandoned and the
subdivision of the land, therefore, was not an agreed
term of the
contract. The amendment to the plea, raising the special plea,
was introduced a few months before the trial in
this matter
commenced, and fortifies my
prima
facie
my view that the parties, and the defendant particular, did not
consider that the Act applies to the agreement between them.
UNJUST
ENRICHMENT
[9]
The defendant’s evidence is that the farm Wetherun belonged the
Lindsay and Helgaard Slabbert Trust (the Trust), and forms
part of a
bigger unit (comprising six other farms). He testified that he rented
the farm since 1992 and bought it in 2002. He farms
on the six other
farms forming part of that unit of farms. It is not clear if the farm
the defendant purchased is called Wetherun
or if only the farmhouse,
which is the subject matter of this case, bears that name. The
parties throughout referred to the defendant’s
farm, where he
resides, as “Pandam”. Under cross-examination the
defendant agreed that the role of the Trust was never
mentioned or
discussed. He also said that the Trust, to whom “the deed is
registered”, was not involved in the agreement
between him and
the plaintiff. When asked why he referred to the farm and the
property as his, his reply was “that’s
how we talk”.
It is therefore unclear who owns the farm on which Wetherun is
situated, and what the defendant meant when
he says he bought the
farm after leasing it for ten years. It would appear, from his
evidence that “deed” refers to
the title deed relevant to
the property.
[10]
The connection between the defendant and the Trust, legally or
otherwise, was not placed on record. It seems that the Trust’s
ownership of the farm was mentioned to the plaintiff during the
discussions regarding the transfer, to the defendant’s heirs,
of the rights and obligations he acquired in terms of the agreement
between him and the plaintiff . In his plea, he simply denied
being
unjustifiably enriched at the plaintiff’s expense, without
elaborating. Plaintiff’s counsel, Mr Grewar, in his
Heads of
Argument, acknowledges the Trust’s ownership of the farm. If it
is in fact so that the Trust owns the land, then
it is the Trust
which would be unjustifiably enriched by the improvements made by the
plaintiff to the farmhouse Wetherun. The
Trust is not a party to
these proceedings. In my view, therefore, the plaintiff’s claim
based on unjust enrichment against
the defendant cannot be sustained.
BREACH
OF CONTRACT
[11]
The parties started off on a very cordial note, as evidenced by an
e-mail letter from the defendant to the plaintiff dated
3 March 2011.
From this letter it is clear that there was on-going communication
between them on a variety of topics, but more
importantly on “the
agreement concerning Wetherun”. The defendant invited the
plaintiff to continue exchanging thoughts
in this regard, and
indicated that he would discuss the matter with his lawyer so that by
the time he saw the plaintiff again,
he hoped to have a “working
document” in place. The defendant also indicated his excitement
over “the whole project”
and the plaintiff’s input
in regard thereto, offering to assist the plaintiff, “where
possible, to create something
beautiful”. Both agree that they
formed a friendship and the plaintiff stayed on the defendant’s
premises for several
months while Wetherun was being renovated. For
most of that time it appears that the relationship was a close and
warm one.
[12] The parties agree
that an agreement was entered into between them, and the following
terms are common cause:
12.1
The plaintiff would, at his own cost, renovate the farmhouse
Wetherun;
12.2
In return, the defendant granted the plaintiff the right to occupy
the farmhouse for an indefinite period, possibly even
for the
lifetime of the plaintiff;
12.3
The agreement was terminable at the instance of either
party.
The
point of departure is the payment of compensation to the plaintiff.
As indicated, the plaintiff alleges that should the contract
be
terminated, for whatever reason, he would be compensated for the cost
of renovations upon termination of the contract. The defendant
alleges that the parties agreed that the plaintiff would be paid no
compensation unless the farm was sold. It is only in that event
that
the plaintiff would be compensated for any increase in value of the
farm.
[13] A
few months into the renovation project, the relationship between the
parties became progressively strained. It seems that
the defendant’s
wife (according to the plaintiff), at some stage, was involved in
stipulating the execution of some of the
work, which the defendant
denies but alleges that his wife was simply giving direction to the
workmen to continue with work in
the absence of the plaintiff. At one
stage, the plaintiff left the defendant’s property and rented
premises in a neighbouring
town, while commuting to the defendant’s
farm to continue with the renovations. The plaintiff was extensively
cross-examined
about keeping the room in which he stayed at the
defendant’s premises, in an untidy state. It seems that this
caused much
irritation to the defendant and his wife. The defendant
admitted to this when he was cross-examined. The length of the
plaintiff’s
stay at the defendant’s home appears to have
been another source of irritation to the defendant, which contributed
to the
gradual cooling off of the relationship between them. It seems
that the proverbial straw that broke the camel’s back was the
incident on 14 February 2013 when the plaintiff made the alleged
blasphemous utterance/s to the defendant’s son.
[14]
The defendant appears to have been enraged by the remarks of the
plaintiff, who concedes that he made utterances which upset
the
defendant, and he apologised to the defendant for such remarks. The
defendant clearly did not accept the apology and ordered
the
plaintiff to (permanently) leave the farm. The plaintiff regarded
this as a repudiation of the contract between him and the
defendant,
accepted it as such and left the farm, effectively halting the
renovation project. The defendant pleads that he terminated
the
contract between the parties as a result of the blasphemous utterance
by the plaintiff, as he was entitled to do. Remarkably,
the content
of this utterance was not put before this court; the defendant
stoically refused to do so, and the plaintiff merely
indicated that
he was accused of taking the name of the Lord in vain.
[15]
It was not agreed between the parties that the making of blasphemous
statements would be a ground for termination of the contract,
nor can
it be said to be an implied or tacit term of the contract. This much
was confirmed by the defendant in his testimony when
he said that his
religious beliefs did not play a part in the conclusion of the
contract nor was it agreed that he could cancel
the contract if the
plaintiff made blasphemous statements. The defendant alleged that the
contract between him and the plaintiff
was a “friendship
agreement” and asserted that the plaintiff was well aware of
his strong Christian beliefs and ought
to have known that the
defendant could cancel the contract if he made such utterances. In my
view, this assertion is misguided
and not rational. Even if the
plaintiff was previously admonished for making blasphemous statements
(according to the defendant’s
evidence, and which was denied by
the plaintiff), it is not reasonable or rational, in the absence of
any agreement to this effect,
to import such utterances into the
contract and rely on those utterances to cancel the contract, however
devout a Christian the
defendant is and however aggrieved he may have
been by such remarks. It is clear from the evidence of both parties
that an amicable
relationship between them was necessary for the
continuance of the contract. The plaintiff agreed that in view of the
strained
relations it was better to terminate the contract, but not
in the manner and for the reasons advanced by the defendant. I agree
and I will deal further with this later on. The impression that is
gained from the reasons put forward by the defendant for the
souring
of relations between the parties, is that some of the incidents were
contrived to caste the plaintiff in a bad light or
that there was an
over-reaction to certain incidents on the part of the defendant, for
example, the untidy room incident.
[16]
Mr Louw, in his Heads of Argument correctly asserted that in deciding
whether the plaintiff has proved the disputed term of
the contract,
namely that the defendant is to compensate him for restoration costs
if the agreement is cancelled, the court must
assess whether the
plaintiff’s or defendant’s version is to be preferred in
this regard. In order to make such a finding,
the court must assess
the credibility and reliability of the parties as witnesses, and
weigh their respective versions against
the probabilities, taking
into account the evidence, as a whole.
[17]
In evaluating evidence and dealing with the calibre of witnesses, it
is instructive to refer to the dictum in
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell et Cie and Others
2003(1)SA
11 (SCA) at pages 14-15 paragraph 5,
where
the court said the following
:
“…
the
court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That
in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness' candour
and demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance compared
to
that of other witnesses testifying about the same incident or events.
“... a witness' reliability will depend, apart from
the factors
mentioned… above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the
quality,
integrity and independence of his recall thereof. “…
this necessitates an analysis and evaluation of the
probability or
improbability of each party's version on each of the disputed issues.
In the light of its assessment… the
court will then, as a
final step, determine whether the party burdened with the onus of
proof has succeeded in discharging it.”
[18]
The plaintiff came across as an educated, articulate and meticulous
person. His account of the manner in which events unfolded
was
confirmed very largely by the defendant. He produced his notes and
records relating to the renovations, together with photographs
of the
farmhouse during different stages of the renovation process,
from which it was evident that a large amount of work
was undertaken
by him. The plaintiff testified that he had previously undertaken
renovations of this nature in England and Canada
and knew what he was
doing. His answers to questions were direct and he had a good recall
in respect of dates and the sequence
of events. The line of
cross-examination of the plaintiff went largely towards the progress
of the renovations and incidents which
allegedly eroded the
relationship between the parties. The plaintiff was steadfast in his
recollection of dates and the sequence
of events. In spite of the
lengthy cross-examination regarding certain incidents that apparently
caused irritation to the defendant,
it was not suggested that these
incidents or. the breakdown in the relationship was a ground for
termination of the contract
[19]
The defendant was evasive in respect of a number of issues, and did
not have the clarity of recall regarding the dates, sequence
of
events and even the content of some discussions that the plaintiff
did. His answers in response to questions regarding his right
to
cancel the contract indicate a somewhat authoritarian attitude, for
example, he said it was his farm, he was responsible for
the farm and
the people who live there and that he made the rules (relating to how
people should behave). His answers in respect
of the alleged
blasphemous statements by the plaintiff support the plaintiff’s
contention that the defendant’s conduct
on the day he was
confronted about these statements was emotional and indicated a loss
of self-control, fortifying my view that
the conduct of the defendant
in terminating the contract was irrational. If this was a
“gentleman’s” agreement
or a “friendship”
agreement, as alleged, it would have been expected of the defendant
to draw to the attention of the
plaintiff that continuance of the
contract, in the light of the strained relations between them, was no
longer possible and to
discuss the termination of the contract, as
agreed to between them.
[20]
With regard to the probabilities in respect of the issue of
compensation, the plaintiff explained that because a lifelong right
of occupation was agreed upon, the cost of the renovations would be
discounted progressively against a nominal amount in respect
of
occupation of the farmhouse. The nett result would be that over time
there would be no amount owing to the plaintiff in respect
of the
cost of renovations. This would be the case only if he took
occupation of the farmhouse and remained in occupation over
an
extended period. If the agreement were terminated by either party,
then he would be compensated for the cost of the renovations
due at
that time. He did not take occupation or even complete the
renovations, due to the termination of the contract by the defendant.
Hence, the amount he expended on renovations up to the date of
termination was due to him. The terms of the agreement that he
consented to were clearly with the intention of investing in
accommodation for himself whenever he was in South Africa. His
response
to the defendant’s version that he would not be paid
any compensation if the contract were terminated was that no person
in his right mind would agree to such a term. I agree. It makes no
economic sense and is illogical, given that he would have no
prospect
of recovering his money unless the farm was sold.
[21]
The defendant’s version is, in essence, that the plaintiff
would have to expend a large amount of money and then wait
for an
event, that may never happen, to be compensated. That someone of the
plaintiff’s experience and intelligence would
agree to such a
term or condition is, in my view, improbable and is an indication of
the fact that the defendant was not acting
in good faith. Another
indicator of the defendant’s lack of good faith in this matter
is his denial that the renovations
would have cost as much as the
plaintiff is claiming. His view is that such renovations should have
cost about Fifty Thousand Rand
(R50 000.00). The defendant is a
successful farmer who, by his own admission, runs a large farming
operation and has been doing
so for twenty seven years. He also
testified that he is good with finances and “balances the
budget”. It takes a high
degree of skill and financial acumen
to run such a large operation. It is also his evidence that he
effected repairs and renovations
to the buildings on his farm, using
Mr Motaung (the contractor hired by the plaintiff) to do so. It is
unlikely that he would have
no knowledge of the cost of such
renovations. Given the extent of the renovations done by the
plaintiff, which are not in dispute
by the defendant, it is
remarkable that the defendant asserts that such extensive work can be
done for a quarter of the amount
claimed by the plaintiff. It is
difficult to resist the inference that the defendant is fabricating a
version in order to escape
compensating the plaintiff for what he is
entitled to.
[22] I
am, therefore, of the view that in respect of the term of the
contract relating to compensation, the probabilities favour
the
plaintiff’s version, and that the agreement between the parties
was that the plaintiff would be compensated for the cost
of
renovations upon termination of the contract. It is improbable,
taking the evidence as a whole, that the plaintiff would have
agreed
to compensation as alleged by the defendant. I also find that the
defendant was not entitled to cancel the contract on the
basis of an
alleged blasphemous utterance by the plaintiff and that such
termination was unlawful.
ORDER
[23] In the
circumstances, I make the following order:
23.1
Judgment on the merits is granted in favour of the plaintiff.
23.2
The defendant is ordered to pay to the plaintiff such damages in
respect of the renovations to the farmhouse Wetherun, as
the
plaintiff is able to prove.
23.3
The defendant is ordered to pay the plaintiff’s costs on a
party and party scale.
_____________
S. NAIDOO, J
On behalf of
Plaintiff: Mr
DM Grewar
Instructed
by:
Spangenberg Zietsman & Bloem
FAL
Manor
6
Seventh Street
Arboretum
BLOEMFONTEIN
(Ref:
WAS/SM5004)
On behalf of Defendant
: Mr MC Louw
Instructed by:
Azar & Havenga
65
Park Road
Willows
BLOEMFONTEIN
(Ref:
PE AZAR/LP2574)