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[2015] ZAGPPHC 347
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Supreme Ontwikkelings Bk and Others v Perold N.O. and Others (36416/2011) [2015] ZAGPPHC 347 (14 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 36416/2011
Date:
14 May 2015
Reportable
Not
of interest to other judges
In
the matter between:
SUPREME
ONTWIKKELINGS
BK
.....................................................................
FIRST
PLAINTIFF
TOWER
CITY TRADING 340
BK
...................................................................
SECOND
PLAINTIFF
HENRI
LAMPRECHT PRETORIUS
N.O
..........................................................
THIRD
PLAINTIFF
TJARDA
PRETORIUS
N.O
..............................................................................
FOURTH
PLAINTIFF
MATTHYS
CHRISTIAAN PRETORIUS
N.O
....................................................
FIFTH
PLAINTIFF
MARCO
GAGIANO
...............................................................................................
SIXTH
PLAINTIFF
ALAIN
MARCEL LEON JOSEPH
HOCEPIED
.........................................
SEVENTH
PLAINTIFF
BARBARA
ALICE
HOCEPIED
........................................................................
EIGHTH
PLAINTIFF
CASPER
JOHAN HENDRIK
BOTHA
.............................................................
NINETH
PLAINTIFF
TUKANI
PROPERTY (EDMS)
BPK
..................................................................
TENTH
PLAINTIFF
LUCAS
JOHANNES
NEL
...........................................................................
ELEVENTH
PLAINTIFF
LUCAS
JOHANNES
NEL
...........................................................................
TWELVETH
PLAINTIFF
BAREND
JOHANNES GYSBERTUS CRONJE
..................................
THIRTEENTH
PLAINTIFF
BERINA
CRONJE
...................................................................................
FOURTEENTH
PLAINTIFF
WAPADRAND
COUNTRY
ESTATES
.......................................................
FIFTEENTH
PLAINTIFF
And
MARIE-JOSè
KATRIEN PEROLD
N.O
...........................................................
FIRST
DEFENDANT
JAN HENDRIK NEL
N.O
..............................................................................
SECOND
DEFENDANT
IZAK ABRAHAM
PEROLD
N.O
.....................................................................
THIRD
DEFENDANT
JOINTSHELF
1198 (EDMS)
BPK
................................................................
FOURTH
DEFENDANT
JUDGMENT
PRETORIUS
J,
[1]
The
plaintiffs instituted action against the defendants for a declaratory
order setting out:
“
1.
EIS 1:
‘
n
Verklarende Bevel dat:
1.1
Die
Perold-Dykor Trust versuim het om te voldoen aan die huisreëls
van Wapadrand Country Estates (Edms) Bpk;
1.2
Die
Perold-Dykor Trust en hulle verteenwoordigers se vrye onbelemmerde
toegang oor die geregistreerde reg van weg serwituut oor
Gedeelte
348, Gedeelte 349, Gedeelte 350, Gedeelte 351 en Gedeelte 352 verbeur
word tot en met
1.3
Voldoening
aan die huisreëls van die Wapadrand Country Estates (Edms) Bpk;
1.4
Alternatiewelik
dat
die Perold-Dykor Trust verplig word om aan die huisreëls van
Wapadrand Country Estates (Edms) Bpk te voldoen en daaraan
gebonde
is.
2.
EIS 2:
ALTERNATIEWELIK TOT EIS 1 HIERBO
2.1 Dat die
Perold-Dykor Trust die volgende bedrae aan die Vyftiende Eiser
betaal:
2.1.1
R14 764.44
2.1.2
R15 264.44
2.2 Dat die
Vierde Verweerder die volgende bedrag aan die Vyftiende Eiser betaal:
2.2.1
R15 873.76”
[2]
In Limine
:
A pre-trial minute
dated 26 March 2015 indicated that the parties had agreed that the
court should first deal with the various points
in limine
that
the defendants raised. It was agreed in terms of Rule 33(4)
that these points
in limine
would be dealt with separately.
The matter was subsequently heard and it was decided that the court
has to adjudicate the
points
in limine
as separate from the
other issues in terms of Rule 33(4). The points
in limine
which were raised is:
1.
“
Geskiloplossingsprosedures: Arbitrasie: Erwe 230 en
231
Geskiloplossingsprosedures:
Arbitrasie: Gedeeltes 348 tot en met 352.”
2. “
Eisers
voeg nie kontrakterende party: Oorspronklik erwe 230 en 231
Versuim
deur die Eisers tot voeging van Cornelius Jacobus De Villiers in sy
persoonlike hoedanigheid en die La Rochelle Trust as
eie entiteit.”
[3]
The
onus to start is on the defendants to prove the points
in
limine
.
[4]
The
first point
in
limine
relates to whether the court should deal with this action or whether
the matter must be referred to alternative dispute resolution
procedures, which according to the defendant includes arbitration.
The defendant alleges that according to the sale agreement
the
dispute should be adjudicated through arbitration or by a referee in
connection with erven 230 and 231. These erven were
bought by
the first plaintiff on 26 November 2001 and subsequently sold to the
7
th
,
8
th
,
9
th
,
10
th
,
11
th
,
12
th
,
13
th
,
14
th
and 15
th
plaintiffs.
[5]
The
defendants allege that all the subsequent owners who bought from the
first plaintiff are bound to all the terms as agreed in
the sales
agreement between the first plaintiff and the defendants.
[6]
The
same agreement applies, according to the defendants, to erven 348,
349, 350, 351 and 352 which was sold on 21 September 2001
to Mr Corne
Jacobus de Villiers in his personal capacity, alternatively he acted
on behalf of the La Rochelle Family Trust.
In this instance
neither Mr de Villiers nor the La Rochelle Family Trust are owners of
these erven anymore.
[7]
The
second point
in
limine
deals with the non-joinder of the original owner of erven 230 and
231, which, according to the defendants, is Mr PA Reinecke, who
entered into the original agreements either in his personal capacity
or as representative of the first plaintiff. According
to the
defendants the plaintiffs had to join Mr CJ de Villiers and the La
Rochelle Family Trust. He or the La Rochelle Family
Trust were
the original owners at portions 348, 349, 350 and 351. Erven
348, 349 and 350 are owned by the first and second
plaintiffs and
portion 351 is owned by the Denver Trust of which the 3
rd
,
4
th
and 5
th
plaintiffs are the trustees.
[8]
Background to Dispute:
The main dispute in
this matter relates to so-called “house rules” of the
Wapadrand Country Estate, which is the collective
name for the
development on the above erven. The portion belonging to the
defendants has the collective name of Faerie Glen
Country Estate.
The gate and road which form the basis of the dispute gives access
both to the residents of Wapadrand Country
Estate and the residents
of Faerie Glen Country Estate. The defendants rely on the house
rules which formed part of the sales
agreement to the first owners,
whilst the plaintiffs deny that these house rules apply.
According to the plaintiffs the house
rules, which were adopted at a
meeting of all owners on 31 March 2003, are the current house rules
and these house rules may and
can be amended.
[9]
The
defendants chose to call Ms Perold, who is the first defendant, as a
witness. Ms Perold is the widow of Mr Perold who
set up the
Perold Dykor Trust (the “Trust”). He initially
divided the estate into erven. He sold the relevant
erven
either as seller in his personal capacity or as representative of the
Trust. Ms Perold is a trustee of the Perold Dykor
Trust, as
well as the beneficiary of the Trust. She is currently living
on portions 432 and 409. The Trust owns portion
352 and the
triangle where the gate to the estate is situated. There is a
notarially executed servitude on the access road
to all the
properties. Ms Perold’s evidence is that she has to drive
through all the properties of the estate to reach
her home. The
development is surrounded by a wall with a gate which can be opened
and closed by a remote control. This
road and gate are the
cause of the present litigation, due to outstanding levies not being
paid by the defendants for using their
gate and the road.
[10]
At
present, it is common cause that the first plaintiff is the
registered owner of portion 348, the second plaintiff is the
registered
owner of portions 349 and 350 and the Denver Trust is the
owner of portion 351. The 6
th
plaintiff is the registered owner of portion 352, whilst the 7
th
and 8
th
plaintiffs are the owners of portion 1 of Erf 665, the 9
th
plaintiff is the owner of portion 2 of Erf 665, the 10
th
plaintiff is the owner of portion 3 of Erf 665. Portion 4 of
Erf 665 is owned by the 11
th
and 12
th
plaintiffs and the 13
th
and 14
th
plaintiffs are the owners of portion 5 of Erf 665.
[11]
The
4
th
defendant and the Perold Dykor Trust are the registered owners
respectively of portion 408 and 409, and the Perold Dykor Trust
is
the owner of portion 432.
[12]
At
present there is a dispute as to which house rules are applicable and
whether they are applicable to the defendants.
[13]
It
is thus clear from Ms Perold’s evidence that the alternative
dispute resolution the defendant is relying on is contained
in the
sale agreements entered into by the Dykor Perold Trust with the
original owners of the erven in question. There is
no
indication that either Mr de Villiers or the La Rochelle Trust are
owners of any of these erven. The agreements entered
into by Mr
de Villiers in his personal capacity or as a representative of the La
Rochelle Trust cannot be used in the present action
as neither has
been cited as a party, nor are they owners of these properties.
Mr de Villiers and the La Rochelle Trust has
no interest in the
present dispute.
[14]
On
28 January 2006 a meeting was held of the Wapadrand Country Estates
(Pty) Ltd which neither Mr Reinecke nor Mr de Villiers attended
in
their personal capacity or as representatives of Supreme Wonings
(Pty) Ltd or La Rochelle Trust respectively. Both the
late Mr
Perold and Ms Perold attended the meeting which dealt with the gate
at Wapadrand Estate. It was agreed at the meeting
that all the
residents of the Faerie Glen Country Estate would pay a R70 per month
levy.
[15]
Mr
de Villiers does not own any property on the estate neither does the
La Rochelle Trust. Therefor they have no interest
in the
matter. I find that the plaintiffs correctly did not cite
either of the two. Mr Reinecke, similarly, has no
personal
interest in the matter, but represents the first plaintiff. I
find that, in these circumstances, it was not necessary
to join Mr
Reinecke in his personal capacity.
[16]
Ms
Perold conceded that the court will have to decide which house rules
are applicable to come to a decision, when examined by counsel
for
the plaintiff.
[17]
No
basis was laid for the admission of hearsay evidence regarding the
late Mr Perold and the evidence tendered by Ms Perold as to
what the
late Mr Perold told her, is not taken into consideration at all when
adjudicating the case.
[18]
In
the present case the action was instituted on 4 August 2011.
All pleadings were served and filed on 22 November 2011.
At the
first pre-trial held on 19 October 2012 no mention was made of
special plea or points
in
limine
.
A pre-trial meeting was held on 26 March 2015 where the defendants
indicated for the first time that the matter should have
been
referred to an umpire, although they did not deal with this in their
original pleadings. They pleaded to the amended
particulars of
claim on 10 April 2015 and only raised the above-mentioned points
in
limine
on 10 April 2015. The court finds that these points
in
limine
were raised as an after-thought, although the court has to deal with
them. There is no explanation as to why it took the
defendants
a further three weeks to formally address these points
in
limine
.
[19]
In
the present instance the problem is that although the defendants
allege that the matter should be dealt with in terms of the
house
rules there is a dispute as to which house rules are applicable.
An umpire will not be able to issue a declaratory
order in regards to
which house rules should be followed, this will have to be determined
by a court.
[20]
In
Universiteit
van Stellenbosch v JA Louw (Edms) Bkp 1983(4) SA 321 AD
Galgut JA held at para 21:
“…
It
can now be regarded as well settled that a foreign jurisdiction or
arbitration clause does not exclude the court’s jurisdiction.
Parties to a contract cannot exclude the jurisdiction of a court by
their own agreement, and where a party wishes to invoke the
protection of a foreign jurisdiction or arbitration clause, it should
do so by way of a special or dilatory plea seeking a stay
of the
proceedings. That having been done, the court will then be
called on to exercise its discretion whether or not to
enforce the
clause in question…”
[21]
This
sets out a two stage enquiry where the court first has to decide
whether the points
in
limine
should be upheld and whether the court should enforce the clause.
The difficulty in the present case is that the court will
first have
to decide which set of house rules applies to the present case.
[22]
Furthermore
Galgut JA set out at para 26:
“…
In
each given case much will depend upon its own particular facts and
circumstances as well
as the
stage at which and the manner in which the issue of enforcement of
the clause in question is raised.
”
(Court’s
emphasis)
[23]
In
the unreported case in this division,
Vhembe
District Municipality v NW Civils Contractors CC, Case no.: A08/2014
(27 February 2015)
the full court held at para 28 and 29:
“
[28]
I agree with Respondent’s Counsel’s submission that the
Appellant acquiesced to the jurisdiction of the High Court
and that
it does not avail it on appeal to attempt to place the Court’s
jurisdiction in issue by relying on the contractual
procedures for
mediation and arbitration. It is correct, as submitted by
Counsel for the Respondent,
that
the Appellant only raises the issue of the availability of
contractual remedies of mediation and/or arbitration after having
participated fully in the proceedings in the High Court, after the
shoe pinched
.
(Court’s
emphasis)
[29]
The issue of mediation and/or arbitration was not raised by the
Appellant in the Court a quo as a special plea. It was
raised
in the body of its plea and argued as a point in limine. After
the dismissal of the point in limine the Appellant
never challenged
the jurisdiction of the High Court to hear the case on the merits.
My view is that the issue of mediation
and/or arbitration should have
been
raised and argued as a
special plea in order to oust the jurisdiction of the Court a quo
.”
(Court’s
emphasis)
[24]
In
the present case the issues of mediation and non-joinder were raised
as points
in
limine
.
There was no special plea as set out in the Stellenbosch case
(
supra
).
[25]
The
umpire cannot decide which house rules to apply. Ms Perold
conceded that only the High Court has jurisdiction to decide
which
house rules are applicable. There is no evidence before court
of the house rules which formed part of the sale agreements,
apart
from the sale agreement between Mr Perold, in his personal capacity,
and Supreme Ontwikkelings BK where portions 230 and
231 were sold to
Supreme Ontwikkelings BK.
[26]
It
is quite clear from Ms Perold’s evidence that all the house
rules do not correspond and that a decision will have to be
made to
decide which house rules are applicable. Had the defendants
raised the points
in
limine
or filed a special plea in 2011, 2012, 2013 or 2014, it could be said
that it was reasonable, but they waited until five days before
trial
to raise these questions. They partook three years in the
present case by pleading, attending pre-trial meetings and
then five
days before trial the defendants raise the points
in
limine
.
In any event it is quite clear that a court will have to decide which
house rules apply as an arbitrator or umpire cannot
do so. This
point
in
limine
can thus not succeed as the arbitrator or umpire cannot determine
which house rules should be used. The plaintiffs had the
right
to accept that the defendants acquiesced to the jurisdiction of the
High Court under these circumstances.
[27]
The
complaint that the plaintiffs did not join Mr de Villiers or the La
Rochelle Trust cannot be entertained. They do not
own property
on the estate at all. The same applies to Mr Reinecke, he has
acted as the representative of the first plaintiff
and has no
personal interest in the matter.
[28]
I
have considered the evidence, the pleas and all the arguments, as
well as the authorities carefully. I find that there are
no
merit in both the points
in
limine
.
[29]
Therefor
the following order is made:
1.
The
two points
in
limine
are dismissed;
2.
The
defendants to pay the costs;
3.
The
main action is postponed
sine
die
.
_____________________
Judge
C Pretorius
Case
number : 36416/2011
Matter
heard on : 20 – 22 April 2015
For the Plaintiffs
: Adv. T Strydom SC
Instructed
by : Ehlers Fakude Ingelyf
For the Defendants :
Adv. W Scheepers
Instructed
by: Couzyn Hertzog & Horak
Date of Judgment :
14 May 2015