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[2016] ZAKZPHC 71
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Driemeyer v Driemeyer (3537/2016P) [2016] ZAKZPHC 71 (1 July 2016)
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IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 3537/2016P
In
the matter between
ROLAND
IVAN
DRIEMEYER
........................................................................................
APPLICANT
And
IVAN
HERMAN LYNNVIE
DRIEMEYER
................................................................
RESPONDENT
JUDGMENT
Date
Delivered: 01 July 2016
MBATHA
J
[1]
On 14 April 2016 I heard an urgent application whereby I granted the
following order:
‘
1
This application is to be heard as one of urgency and that the Rules
pertaining to services of these papers in terms of Rule 6(12)
be and
are hereby dispensed with.
2
The respondent be and is hereby directed to allow the Applicant, its
legal representatives and expert access to the farm described
as
Portion 2 of the farm K…. No 1…… held by Deed of
Transfer No T…… also known as the farm R……..
situated in the district of W……..
3
The Respondent be and is hereby directed to allow the Applicant
together with its legal representatives and experts access on
the
farm R…… on dates and times determined by the
Applicant’s Attorneys, which dates and times would be conveyed
to the Respondent’s Attorneys on 48 hour notice prior to the
allocated dates and times.
4
The Respondent is to pay the costs of the application on the party
and party scale.
5
This order is suspended for a period of two (2) weeks, up and until
28 April 2016.’
The
respondent has since brought an application for leave to appeal which
was argued before me on 21 June 2016.
[2]
The applications for leave to appeal are now governed by the
provisions of Section 17(1) of the Superior Courts Act
[1]
which provides as follows:
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)
(i) the appeal would have a reasonable
prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b)
…’
The
Superior Courts Act has raised the bar regarding the required
standard for granting of applications for leave to appeal. The
court
in
The
Mont
Chevaux Trust (IT 2012/28) v Tina Goosen and 18 Others
[2]
has
stated as follows:
‘
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The
former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion,
see
Van Heerden v Cronwright and Others
1985
(2) SA 342
(T) at 343H
.
The use of the word “would” in the new statute indicates
a measure of certainty that another will differ from the court
whose
judgment is sought to be appealed against.’
[3]
The effect of the judgment that this court granted on 14 April 2016
is of a final nature only in so far as granting the applicant
in the
main application the relief sought. The relief sought satisfied the
requirements of a final interdict as stated in
Setlogelo
v Setlogelo,
[3]
whereby the applicant has to establish a clear right, injury actually
committed or a reasonable apprehension of harm and the absence
of any
other remedy.
[4]
The respondent’s grounds of appeal are as follows:
[4.1]
That the respondent has failed to establish a clear right as a
prerequisite for a final interdict, as another court can come
to a
conclusion that the respondent should not be afforded ‘some
reasonable access when required’;
[4.2]
That the applicant failed to make out a case that an injury was
actually committed or that there is a reasonable apprehension
of
injury as it relied on unsupported hearsay evidence in its founding
affidavit in that:-
(a)
the respondent has been advised and verily believes that the
applicant is contravening the provisions of Sections 21(a), 21(b),
(21(c) and 21(i) of the National Water Act;
[4]
(b)
that he has reason to believe that the applicant contravenes the
provisions of the National Environmental Management Act 107
of 1998
(‘NEMA’) as he had not obtained authorisation to
construct water works in the Kholisa River, the tributary
of the
Little Tugela River;
(c)
that the applicant has constructed a dam wall across a perennial
river, and from where he releases water to run along
the river to a
weir constructed by the applicant in the river on the respondent’s
farm, from where water is finally reticulated
to other dams on the
farm and used for irrigation.
The
respondent believes that this constitutes transgressions of the Water
Act and NEMA, which conduct the respondent believes to
be unlawful.
The respondent also states that he had been informed by the
Department of Water Affairs that even if the irrigation
on the farm
has been registered, it could be unlawful; and
(d)
That it has recently come to his attention that the actions conducted
by the applicant on his farm may be unlawful.
[4.3]
That another court may come to a different conclusion regarding the
factual findings made by this court, in that the respondent
is not
granted access at dates and times to be arranged with the applicant’s
attorney, but rather on the dates to be arranged
with the
respondent’s attorney at the applicant’s election and
discretion on 48 hours’ notice;
[4.4]
The appeal is also based on the lack of urgency of the matter. It was
submitted that it lacked that degree of urgency for
the short service
made by the applicant.
[5]
The application for leave to appeal is opposed by the respondent.
[6]
I previously ruled that the application was urgent and that the
applicant was entitled to the relief sought.
[7]
I will first deal with the issue of urgency. The applicant filed a
five page affidavit opposing the application on the basis
that he
needs time to deliver an answering affidavit. The application papers
had been served on his attorneys of record and his
gardener on 7
April 2016. He had been away since 5 April 2016. The gardener handed
over to him the application papers on 9 April
2016. He contacted his
attorneys on 11 April 2016 and consulted with counsel on 12 April
2016 from 14h00 till after 17h00. He effectively
spent three hours in
consultation with counsel. The matter was to be heard on 14 April
2016, two days after the consultation.
[8]
He filed an opposing affidavit to the application whereby he
selectively dealt with certain issues on the merits of the
application,
inter alia, that the respondent had not been specific
about when certain knowledge came to his attention, that the
applicant has
had access to the farm on numerous occasions for other
purposes and that the respondent was aware of the extent of his
farming
operations and water usage on the farm.
[9]
He averred that he was entitled to normal time limits in terms of the
Uniform Rules of Court to file his answering affidavit.
He also
stated that he was requested to furnish further information and
documents to his legal representative, but does not state
what
documents he was required to produce. This affidavit was commissioned
in Winterton on 13 April 2016.
[10]
In addition to the reasons that I gave when I delivered the
ex
tempore
judgment, I wish to state
further that this court still holds the view that he had ample
time to file an answering affidavit
as he was in a position to file
an opposing affidavit. The respondent was only seeking reasonable
access to the farm for a specific
purpose which does not require him
to furnish any documents to any attorney. He personally has the
knowledge relating to the application.
He
chose to selectively deal with certain issues raised in the founding
affidavit. His conduct is dilatory as demonstrated by the
correspondence exchanged between the parties prior to the hearing of
the application in which he displayed an uncooperative attitude
to a
request by the applicant’s attorneys.
I
find that he was in a position to have filed a detailed answering
affidavit if he wished to do so and give the matter the urgency
it
deserved in the circumstances.
[11]
It is trite that a lessee is entitled to full use and enjoyment of
the property during the full term of the lease, what is
termed the
“
commodus usus
” of the property. A lease is also a
contract with reciprocal obligations. The lessee enjoys the full use
of the property,
but he must also comply with the terms of the
contract in that rent needs to be determined. This is one of the
reasons that the
respondent sought access to the property. In the
opposing affidavit the applicant herein did not dispute that.
The
landlord has a right to enter and conduct routine inspections, but
only after arranging with the tenant to do so at reasonable
times,
and with reasonable notice. The tenant may not unreasonably deny the
landlord access to inspection. If it is unreasonably
withheld, he can
approach the court.
The
applicant in the main action did not just rush to court, but had sent
email requests for permission to the respondent’s
attorneys in
the main action as early as 26 February 2016 requesting access to the
farm, after having been chased from the farm.
These emails are marked
urgent, indicating that the urgency did not arise as at the date of
filing the application but at the beginning
of the year. The
applicant in this application flatly refused these requests. In the
meantime, transgressions were continuing on
the farm.
[12]
In support of its case the court was referred to
Soffiantini
v
Mould
[5]
by the applicant which is considered to be an authority in such
cases. In that case the court held that the fact that a landlord
may
have a reasonable purpose for entering leased premises does not
entitle him to do so without the permission of the tenant.
In
this case the landlord stated the purpose for his request to enter
the premises, but this was never considered by the applicant.
[13]
The respondent cannot be said to be speculating about the
transgressions on the premises. He acts as a reasonable man would
be
expected to in the circumstances. He wants to investigate these
himself with the assistance of experts. He has a reasonable
apprehension of harm. Pothier in
Letting and Hiring
paragraph
73 states that there are circumstances in which a lessor is entitled
to claim the right to enter for instance, when he
reasonably requires
such right in order to inspect the property or to make repairs the
leased property.
The
submission made on behalf of the applicant that he can report the
unlawful activities in terms of NEMA is of no assistance to
the
respondent if the extent thereof is not ascertained. The request for
access by the respondent is two-fold, namely to determine
rental and
to check the extent of the unlawful activities, with the use of
experts. In the event that the breaches of the law are
left to
continue unabated like the building of a dam in breach of the Water
Act, the respondent would be liable as the owner of
the land.
[14]
Pothier’s
Treatise on the Contract
of Letting and Hiring
at page 34 states
as follows:
‘
It
is not a disturbance of the lessee’s enjoyment if the lessor
goes himself, or sends others on his behalf, to inspect, nor
is it a
disturbance when he goes himself or sends others to hunt, provided he
causes no damage to the fruits: for hunting is
not
included in a farm lease, and indeed cannot be, as we have seen
above.’
[15]
I also agree with the views expressed in
Madrassa
Anjuman Islamia v Johannesburg Municipality
[6]
where the court stated as follows:
[7]
‘
For
the question after all is one of construction, and if a Court should
be satisfied from the language of the Legislature that
the intention
was that the special remedy provided by the Act should be not in
substitution of but in addition to the common law
remedies, then no
doubt effect must be given to that intention.’
In
the very same case the court went on further to say:
[8]
‘
To
exclude the right of a Court to interfere by way of interdict, where
special remedies are provided by Statute, might in many
instances
result in depriving an injured person of the only really effective
remedy that he has, and it would require a strong
case to justify the
conclusion that such was the intention of the Legislature. In the
present instance it is clear that the remedies
provided by the Act
might be successfully evaded.’
In
the light thereof I still find that the respondent had no alternative
remedy save to approach this court.
[16]
In consideration of a request for costs for both counsel employed by
the respondent I have taken into account the following
in the
exercise my discretion to award costs to both counsel. An important
principle of the law was argued. It was ‘a wise
and reasonable’
precaution that was taken by the respondent to engage the services of
senior counsel when faced with a litigant
who could not grant him a
concession or a reasonable request even after obtaining a court order
to that effect. The circumstances
of the case were exceptional in
nature, as the relief sought by the respondent could have been
considered by the applicant, without
forcing the respondent to resort
to a legal process.
The
application for leave to appeal is dismissed with costs, including
costs of two counsel.
MBATHA
J
Date
of hearing : 21 June 2016
Date
delivered : 01 July 2016
Appearances
:
For
the Applicant : Adv. MG Roberts SC
Adv
E Roberts
Instructed
by : Calitz Crockart & Associates
19
Village Road
Kloof
3610
C/o
Austen Smith & Company
191
Pietermaritz Street
Pietermaritzburg
3201
For
the Respondents : Adv C Pretorius
Instructed
by : Tatham Wilkes Inc
200
Hoosen Haffejee (Berg( Street
Pietermaritzburg
3200
[1]
Act
10 of 2013
[2]
LCC14R/2014,
(an unreported judgment delivered on 3 November 2014)
[3]
1914
AD 221
[4]
Act
36 of 1998
[5]
1956
(4) SA 150 (E)
[6]
1917
AD 718
[7]
At
723
[8]
At
725