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[2016] ZAGPPHC 300
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Breed v Heaven on Earth Commercial Farming (Pty) Ltd (44763/2015) [2016] ZAGPPHC 300 (8 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 44763/2015
DATE:
08 MARCH 2016
In the matter
between:
CASPER JAN
HENDRIK
BREED
...................................................................................
APPLICANT
And
HEAVEN ON EARTH
COMMERCIAL FARMING (PTY) LTD
.............................
RESPONDENT
JUDGMENT
Applicant applies
for the eviction of Respondent and ail persons occupying through it
from the remaining extent of Portion 7 of
the farm Rondawel 22,
District Marble Hall (“the property”). Applicant is the
owner of the property and contends that
Respondent remains in
unlawful occupation thereof as the relevant lease agreement in terms
of which it initially occupied the property
was cancelled by the
Applicant.
For a proper
understanding of the prospective arguments of the parties hereto, it
is necessary to briefly set out the contextual
background. Apart from
the property in issue herein, Applicant was also the owner of four
other properties in that area. A contract
of sale was concluded on 21
May 2012 (“the first contract of sale"), in terms of which
the Respondent bought these four
farms. On the same day that this
contract of sale was signed, an addendum thereto (“the first
addendum”), was concluded
in terms of which payment of R 5
million of the purchase price was deferred. The contract of sale
contained certain suspensive
conditions which were not fulfilled. The
result was that on 10 August 2012, the parties concluded a subsequent
contract of sale
(“the second contract of sale”), and
addendum (“the second addendum”), that replaced the first
contract
of sale and the addendum. The essential terms of the
contract remained the same. Clause 23 of the second contract provided
that
no agreement between the parties that would be at variance with
the terms of the sale agreement would be binding, unless reduced
to
writing and signed by, or on behalf of the parties. Further, no
indulgence or extension provided to Respondent by the Applicant
would
prejudice the rights of the Applicant in any way and would not create
any new rights. Also, the Applicant was not bound by,
or liable in
regard to any representations made, other than those incorporated in
that particular written agreement. The property
that forms the
subject matter of the eviction application was not bought by the
Respondent together with the other four farms.
On 10 August 2012, a
further agreement was entered into, namely a written lease agreement,
in terms of which the Respondent agreed
to lease the property from
the Applicant for a period of three years with an option to extend
this lease for a further period of
two years. It was also agreed that
Applicant would apply for permission to sub-divide this property, and
the Respondent was given
an option to purchase it once the required
approval was obtained. Clause 11 of this agreement is of particular
relevance and in
translation it deals with cancellation as follows:
The lessor could
cancel the lease agreement with immediate effect and evict persons
occupying the property if the lease or any part
thereof was not paid
when due. It could also so cancel if the lessee failed to pay the
annual instalments and interest due punctually
in terms of the sale
agreement. It could also cancel if the lessee breached any other
condition in the lease agreement, tf the
Applicant wanted to cancel
the lease agreement and the Respondent disputed the cancellation, the
latter would continue to pay rental
until the dispute had been
resolved and the Applicant would accept this rental without prejudice
due to the cancellation. The lessee
was also given an option to
purchase the property once the necessary permission to sub-divide it
had been obtained. Clause 19 of
this lease agreement dealt with
amendments thereto and provided that no amendments, additions,
suspension or cancelation of any
condition or provision of the lease
or the lease itself, excluding as provided for in the lease, would
have any legal force and
effect until such time as it was reduced to
writing and signed by or on behalf of both parties.
The four properties
sold to Respondent were transferred into its name on 20 December
2012.
It is not disputed
that the Respondent breached the second agreement and addendum
thereto by repeatedly failing to pay amounts that
were due promptly
on the day that they were due. On 20 December, and up to 21
December, the Respondent was in arrears in the amount
of R 1, 909,
568.65 and on 22 December 2014, the amount of R 1, 409, 568.65
remained outstanding in respect of instalments and
accrued interest.
At the end of December 2014, the Applicant acquired from Mario
Grobler when the Respondent intended to pay the
outstanding amounts.
Mario Grobler responded on 30 December, by electronic mail and (in
translation) said the following:
The contents of
Applicant's email was noted;
He (Mario Grobler)
had paid an amount of R 500 000 to the Applicant on 20 December 2014,
and that the outstanding amount, which
included interest amount was R
404 000.
“They”
were however not in a position to now pay the balance and kindly
requested an extension to pay as follows:
5.3.1 A further R
500 000 would be paid on 31 January 2015;
5.3.2 A final
payment of R 904 000 would be paid on 28 February 2015;
5.3.3 A final
interest payment would be made on 28 February 2015, calculated on the
R 1404 000 outstanding amount.
“They”
offered to pay interest at prime rate plus 5# on the outstanding
amount.
They apologised for
the inconvenience which was caused by a poor grape harvest and income
that had not been realised as a result
thereof. He made a sincere
request that Applicant help it out of its dilemma.
In a follow-up
electronic mail dated 5 January, Mario Grobler enquired from the
Applicant what its response was to his proposal
of 30 December 2014.
He also proposed that the parties meet and discuss the matter. A
meeting was subsequently held on 15 January
2015, and Applicant
handed Mario Grobler a notice of cancellation of the lease drafted by
Applicant’s Attorneys, dated 14
January 2015. In translation,
this notice states that Respondent was in default of the payments of
the purchase price of the properties
referred to in par. 11.1.2 of
the rental agreement. Notice was given that the lessor cancels the
agreement of lease in terms of
Clause 11. Further discussions were
held at this meeting and proposals made in respect of the lease of a
store room and the purchase
of certain movable assets. Discussions
were also held about the payment of the outstanding amounts and on 19
January Applicant
stated that such arrangements were in order,
subject to conditions of the written agreement. A further meeting was
held on 28 January
2015.
On 18 February 2015,
Mario Grobler wrote to Applicant and confirmed certain decisions
taken at the meeting of 28 January. This agreement
was in respect of
the store room. Certain proposals were made in this regard, as well
as in respect of certain movables. Nothing
in this letter disputes
the cancelation or refers to any misrepresentations or to any waiver
of Applicant’s rights.
In the Answering
Affidavit, Respondent raises aspects never previously raised, such as
representations made by Applicant as to the
number of hectares with
planted vines, and the fact that Applicant accepted late payments
over a lengthy period of time, and was
therefore estopped from now
relying on the relevant contractual clauses that I have referred to
regarding waiver and/or variation.
There are other defences also
relating to the sub-division of the property and the exercise of an
option. I do not intend dealing
in any great detail with these
defences which were never raised at the meetings on the one hand, and
which are in direct conflict
to the mentioned non-variation clauses
in the agreements.
It is clear from the
affidavits as a whole that the facts that gave rise to Respondent’s
occupation are common cause. It is
also common cause that the
Respondent on numerous occasions failed to make payments when they
were due. The non-waiver and non-variation
clauses are in my view
clear. There is no doubt as to their interpretation and
applicability. It is also doubtful whether the particular
option was
validly exercised at the time and for present purposes I cannot have
regard thereto. The necessary allegations to found
the exercise of
such an option in terms of the contractual provisions have not been
made. There is for instance, no allegation
that the required consent
for sub-division of the property, that is a pre-requisite, had been
obtained prior to the exercise of
such option. I agree with
Applicant’s Counsel that all of the mentioned defences were
raised ex post facto and were not referred
to when one would have
expected them to be dealt with, fn my view there is no room for the
argument that the particular clauses
in the contract of sale and the
contract of lease were tacitly amended or varied or that the
Applicant waived any of its rights
in that context. Parties must
abide by the agreement that they have signed in the absence of any
fraud. Non-variation clauses are
binding and are not perse contrary
to public policy.
See: Brisfey v
Drotsky
2002 (4) SA 1
SCA.
Waiver is in any
event not assumed lightly and dear evidence thereof is required. See:
Feinstein v Niggli
1981 (2) SA 684
AD.
The result is that
Respondent has no sustainable defence and accordingly the following
order is made:
1. Respondents and
all persons occupying through it, are evicted from the remaining
extent of Portion 7 of the farm Rondawel 22,
District Marble Hall,
and are to leave this property within 30 days from date of this
order;
2. Respondent is
ordered to pay the costs of this application on the scale as between
Attorney and client
JUDGE H J
FABRICIUS
JUDGE OF THE
GAUTENG HIGH COURT, PRETORIA DIVISION
Case number:
44763/15
Counsel for the
Applicant: Adv D. Prinsloo
Instructed by:
Rudi Kotze Attorneys
Counsel for the
Respondent: Adv P. A. Swanepoel
Adv C. A.
Boonzaaier Instructed by: Youngman Attorneys
Date of Hearing:
24 February 2016
Date of Judgment:
8 March 2016 at 10:00