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[2015] ZANCHC 7
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Horn v Great Force Investments 25 (Pty) Ltd and Another (No:220/14) [2015] ZANCHC 7 (27 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBELEY)]
Case
No:220/14
DATE:
27 MARCH 2015
In
the matter between:
C.J.G
HORN
.......................................................................................................................
APPLICANT
AND
GREAT
FORCE INVESTMENTS 25
(PTY)LTD
...............................................
1ST
RESPONDENT
F.J
COETZEE
........................................................................................................
2ND
RESPONDENT
CORAM:
LEVER AJ
JUDGMENT
Lever AJ
1. The applicant
seeks an order on an urgent basis suspending the implementation of an
eviction order against him and others granted
by Erasmus AJ on the
12
th
December 2014 pending the institution of an action to
rectify an agreement of sale, in part involving the properties being
the
subject of the said eviction order.
2. The applicant
was given approximately two months to vacate the said property and he
launched the present application only four
days before he was to
vacate the relevant fixed property in terms of the said Court Order.
3. The urgent
application was opposed and was argued before me on the 19
th
March 2015. After hearing the oral arguments I dismissed the
application with costs and indicated that my reasons for doing so
would follow as soon as was practically possible. These are my
reasons for dismissing the urgent application.
4. To establish
the context in which the urgent application was brought, it is
necessary to set out the background as briefly as
possible.
5. During 2005
the applicant had a number of judgment creditors who were about to
sell the relevant fixed properties in execution.
The second
respondent was a friend of the applicant and the applicant approached
him for help. In order to stop the sale in execution
the applicant
and first respondent entered into a written agreement in terms of
which first respondent bought the relevant fixed
properties at a
price that was acceptable to the relevant judgment creditors. In
terms of an addendum to such contract the first
respondent also
bought certain movables and farming implements.
6. It is common
cause between the parties that at all material times, the first
respondent is the registered owner of the relevant
fixed properties.
7. It was alleged
in the eviction application that second respondent, in terms of an
oral agreement, agreed to sell back the relevant
properties to the
applicant at the original purchase price plus 10% (ten percentum) per
annum. This in fact formed the basis of
the present applicant’s
defense in the eviction application. The present second respondent on
behalf of the first respondent
conceded that there was an oral
“buy-back agreement” but maintained that it was only open
for applicant to do so within
a year or two from the original
purchase. Applicant has conceded that it was the intention of the
parties that he would repurchase
the relevant properties within a
year or two but maintained that it was within their contemplation
that it may take longer to repurchase
the properties, but he gave no
details of what the parties contemplated. More about this later.
8.
In the
eviction application present first respondent argued that the oral
repurchase agreement did not comply with the formalities
required by
the Alienation of Land Act
[1]
.
Erasmus AJ found that the oral “repurchase agreement” did
not comply with the requirements of section 2(1) of the
said Act.
Furthermore, that the terms of the said oral repurchase agreement for
the land were vague to say the least. Erasmus AJ
characterised the
oral repurchase agreement as an agreement to enter into an agreement.
9. In the papers
in the present application the applicant concedes that on the case
before Erasmus AJ her findings were correct.
10. In the
present matter there are wide ranging issues taken up by the parties.
These issues include
inter alia
urgency, procedural
matters, mis-joinder and prescription. For present purposes it is not
necessary to deal with all of these issues.
11. In the
present matter the applicant is endeavoring to assert a right to
rectification of an underlying contract by way of an
action. The
applicant is not merely trying to avert an injustice. In these
circumstances the classic requirements for an interim
interdict need
to be established so that the operation of the eviction order can be
suspended pending the determination of an action
for rectification of
the written contract of sale to incorporate the terms of the oral
“repurchase agreement”. The
classic requirements for an
interim interdict are:
11.1.A
prima
facie
right though open to some doubt;
11.2.A reasonable
belief that the applicant will suffer irreparable harm if interim
relief is not granted and ultimately applicant
succeeds in the
action;
11.3.The balance
of convenience favours the granting of interim relief; and
11.4.There
is no suitable alternative remedy.
[2]
12. The applicant
has to establish a prima facie right that would entitle him to
rectification of the written contract to include
the alleged terms of
the oral repurchase agreement. In the circumstances of the present
case the applicant will also have to establish
that if rectification
is granted he would have a
prima facie
right though
subject to some doubt to “repurchase” the properties
concerned. The
prima facie
right may only be open to
some doubt. “Some doubt” is an elastic concept that has
to be established with due regard
to the circumstances and the
evidence already placed on record. Considering the question of
whether the level of doubt is within
acceptable bounds this court is
entitled to consider the evidence filed by the parties in the
eviction application as well as the
evidence filed in the present
application.
13.
A
prima
facie
right though open to some doubt is something more than a bald
assertion and something less than establishing the
prima
facie
right on a balance of probabilities. One considers the inherent
probabilities or improbabilities disclosed by the evidence and
whether the evidence if proved at trial establishes the
prima
facie
right claimed.
[3]
14.
The
approach to be followed has been set out by Corbett J (as he then
was) in the LF BOSHOFF INVESTMENTS case
[4]
as follows:
“
Where the
applicant cannot show a clear right, and more particularly where
there are disputes of fact, the Court’s approach
in determining
whether the applicant’s right is
prima facie
established,
though open to some doubt, is to take the facts as set out by the
applicant, together with any facts set out by the
respondent which
the applicant cannot dispute, and to consider whether, having regard
to the inherent probabilities, the applicant
should on those facts
obtain final relief at the trial of the main action.”
15. In order for
the court to find that there may be a valid “repurchase”
agreement capable of being included in the
original written sale
agreement relating to the relevant properties, the applicant would
have to allege and provide some inherently
credible evidence on the
basic requirements to establish an agreement of sale in respect of
the repurchase agreement. It must be
remembered that Erasmus AJ
characterised this “buy back” or “repurchase”
agreement as an agreement to enter
into an agreement. Something more
than this is required to establish the claim for rectification and a
valid repurchase agreement.
For present purposes I only intend to
consider the requirement that the price be agreed or that it be
capable of being readily
established.
16. In the
present application and the eviction application the present
applicant asserts that the “repurchase price”
was the
original capital sum paid by the first respondent to purchase the
said properties plus 10% (per centum) per annum interest.
Further,
present applicant also asserts that he would rent certain of the
properties in terms of two lease agreements and that
the rental would
pay the annual interest due under the repurchase agreement. He then
goes on to assert that the combined monthly
rental in respect of the
two leases before VAT was equal to 1% (one per centum) of the capital
sum per month. The stark question
is why pay 12% per annum rent to
cover the interest if he was only obliged to pay 10% interest per
annum. In the absence of any
kind of explanation for this, it simply
does not make sense and is inherently improbable. I specifically
canvassed this issue with
Mr Husselman who appeared for the applicant
and he conceded that this was inherently improbable and he could
offer no explanation
for this.
17. The next
issue relating to the price in respect of the “repurchase
agreement” is the behavior of the present applicant
as
disclosed in the record of the eviction proceedings and the present
proceedings. The present applicant asserts that the “repurchase”
price for the relevant properties was the capital sum plus 10%
interest per annum. This can readily be established on the face
of
it, but in the affidavits referred to, the present applicant on his
own version approaches the second respondent “countless
times”
asking him to establish the “repurchase price”. This
behavior is at odds with the assertion that the repurchase
price was
the capital sum plus 10% interest per annum.
18. There is a
further aspect that is connected to the “repurchase price”
that needs to be considered. At some point
the present applicant
stopped paying rental for the properties concerned. The explanation
proffered by him was that he had built
an extra “chicken house”
on the property to the value of R100 000.00 (one hundred thousand
Rand). In the context of
the applicant’s case that the whole
sale of the properties concerned was merely and exclusively to assist
him as some sort
of security for a loan, this explanation is
inherently improbable because applicant would be improving his own
property. It is
improbable that first respondent would accept this
variation of the lease agreement in this context. There is a second
reason why
it is improbable that first respondent would accept such a
variation of the lease agreement. The value of the new “chicken
house” is alleged to be R100 000.00. This is less than 10
months rental at the rate alleged by applicant to have been agreed
between the parties. It is improbable that first respondent would
have agreed to rentals ceasing for an indeterminate period. It
is
common cause that the Applicant has not paid any rental for a number
of years.
19. In the
context of whether or not the applicant has established a
prima
facie
right though open to some doubt, there is a further
aspect to be considered, being that in the relevant affidavits,
present applicant
concedes that it was intended that he would
“repurchase” the relevant properties within a year or
two, although he
asserts that it was in the contemplation of both
parties that this might take longer. Present applicant gives no
details of what
was contemplated by the parties for this extended
period to “repurchase” the relevant properties. In the
present circumstances
I believe it was incumbent upon the applicant
to spell out what was contemplated by this extended period of time to
“repurchase”.
The applicant has failed to give such
details.
20. Taken
individually and collectively all of these factors establish that the
prima facie
right that the applicant wishes to assert
is simply open to too much doubt. This doubt is essentially
established from the various
versions proffered by the applicant
himself. In the circumstances I hold the view that he will fail to
establish these facts at
the trial itself. In short the applicant’s
prima facie
right is open to an unacceptable degree of
doubt. If the applicant fails to establish a
prima facie
right through open some doubt, he is not entitled to the interim
relief he claims.
21. These are the
reasons why I dismissed the application with costs on the 19
th
March 2015.
LEVER AJ
Appearances:
Applicant: Mr.
Husselmann
Respondents:
Adv. Snellenberg
Date of
hearing: 19 March 2015
Date of
Judgment: 27 March 2015
[1]
Act 68 of 1981.
[2]
L.F. BOSHOFF INVESTMENTS v CAPE TOWN MUNICIPALITY
1969 (2) SA 256
(C) at 267 B – D.
[3]
WEBSTER v MITCHELL
1948 (1) SA 1186
(W) at 1189.
[4]
L F BOSHOFF INVESTMENTS., supra at 267 E – F; See Also:
WEBSTER v MITCHELL
1948 (1) SA 1186
(W) at 1189.