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[2007] ZASCA 153
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Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others (171/06) [2007] ZASCA 153; [2007] SCA 153 (RSA); 2008 (2) SA 184 (SCA) (28 November 2007)
Links to summary
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number : 171/06
Reportable
In the matter between :
THE MINISTER OF LAND AFFAIRS AND AGRICULTURE
.......................
FIRST
APPELLANT
THE DIRECTOR-GENERAL OF LAND AFFAIRS
.......................
SECOND
APPELLANT
THE CHIEF LAND CLAIMS COMMISSIONER
.......................
THIRD
APPELLANT
THE DEPARTMENT OF LAND AFFAIRS
.......................
FOURTH APPELLANT
and
D & F WEVELL TRUST
.......................
FIRST RESPONDENT
JOHN FRANCIS CLARKE
.......................
SECOND RESPONDENT
ROSEMARY CLARKE
.......................
THIRD RESPONDENT
NTSINGANI FARMS CC
.......................
FOURTH RESPONDENT
CORAM : SCOTT, BRAND, CLOETE, HEHER JJA
et
HURT AJA
HEARD : 1 NOVEMBER 2007
DELIVERED : 28 NOVEMBER 2007
Summary: Motion proceedings: requirements that must
be satisfied where a respondent, who is not able to deliver
affidavits deposing
to a defence, requests a referral to oral
evidence or trial, set out.
Neutral citation: This judgment may be referred to as
Minister of Land Affairs and
Agriculture v D & F Wevell Trust
[2007]
SCA 153 (RSA).
_________________________________________________________
JUDGMENT
CLOETE JA
/
CLOETE JA
:
INTRODUCTION
[1] On 26 July 2005 Gildenhuys J presiding in the Land
Claims Court granted an order in terms of the Restitution of Land
Rights Act,
22 of 1994 (‘the Act’). The order directed
the Minister of Land Affairs and Agriculture (the first applicant
before this
court and the first respondent in the court
a
quo
), the Director-General, Land Affairs (the
second applicant before this court and the second respondent in the
court
a quo
) and the
Department of Land Affairs (the fourth applicant before this court
and the fourth respondent in the court
a quo
)
to pay, upon registration of transfer, the agreed purchase prices of
properties. The properties had been purchased by the Department
from
the D & F Wevell Trust (the first respondent before this court
and the first applicant in the court
a quo
)
and from Mr J F Clarke, Mrs Rosemary Clarke and Ntsingani Farms CC
(respectively the second to fourth respondents in this court
and the
applicants in the court
a quo
).
No order was made against the Chief Land Claims Commissioner (the
third applicant before this court and the third respondent in
the
court
a quo
). It would
be convenient to refer to the parties as in the court below or by
name.
[2] On 6 December 2005 the learned judge dismissed an
application for condonation for the late delivery of the respondents’
application for leave to appeal and on 3 March 2006 he dismissed the
application for leave to appeal against that latter decision.
The
respondents applied for leave to appeal to this court. That
application was also out of time. The respondents’ application
for condonation in this regard was ultimately not opposed. This court
directed on 28 August 2006 that the application for leave to
appeal
the order of the Land Claims Court of 6 December 2005 (refusing
condonation) be referred for oral argument;
1
and that should the application succeed, the parties
should be ready to argue whether this court could deal with the
appeal on the
merits
2
and, if so, the merits of the appeal.
[3] The first question is therefore whether this court
should grant the respondents leave to appeal against the order of the
Land
Claims Court given on 6 December 2005, in terms of which it
dismissed the respondents’ application for condonation for the
late delivery of their application for leave to appeal against the
order given on 26 July 2005. In order to consider this question,
it
is necessary to set out the relevant facts that led to the order of
26 July which the respondents wish to have set aside, and
the reasons
for the delay in the application for leave to appeal that resulted in
a preliminary hurdle being placed in their path.
It will also be
necessary to consider the respondents’ prospects of success in
an appeal against the order of 26 July 2005,
in the context of the
application for condonation.
THE CONTRACTS
[4] On 14 October 2003 the Wevell Trust entered into a
written agreement with the Department of Land Affairs. On 30
September 2003
the other applicants ─ Mr and Mrs Clarke, and
their son who represented the close corporation in which he held a
100% interest,
to all of whom it will be convenient to refer as ‘the
Clarkes’ ─ also entered into an agreement containing
identical
provisions to the Wevell Trust agreement. In terms of the
agreements the appellants sold certain farms situated in the Badplaas
area
to the Department for an agreed price which was payable on the
date of registration of transfer of the properties into the name of
the Department’s nominee, the Ndwandwa Community Trust.
Registration of transfer had to take place as soon as possible once
the Department had undertaken to pay the full purchase price, a
letter of intent to this effect had been issued and other defined
amounts had been paid. The letter of intent had to be issued within
thirty days of the approval of the agreement by the Minister
of
Agriculture and Land Affairs. Pending registration of transfer, the
applicants were liable for payment of the following:
(a) all rates, taxes and levies (if any) in respect of
the property;
(b) electricity and service rates, including levies to
the town council, in respect of the property; and
(c) premiums for the insurance of the property.
DELAY IN PERFORMANCE OF THE CONTRACTS
[5] The Minister’s approval was necessary in terms
of s 42D of the Act, the relevant part of which provides:
‘
(1)
If the Minister is satisfied that the claimant is entitled to
restitution of a right in land in terms of section 2, and that the
claim for such restitution was lodged not later than 31 December
1998, he or she may enter into an agreement with the parties who
are
interested in the claim providing for one or more of the following:
(a) The award to the claimant of land . .
. .
. . .
(f) Such other terms and conditions as
the Minister considers appropriate.’
Such approval was given, in the case of the Wevell
Trust, in terms of a letter dated 21 April 2004 and the price fixed
was R3 362 700;
and in the case of the Clarkes, in terms of
a letter dated 1 April 2004, and the purchase price (which was
ultimately fixed after
further negotiation) was R10 192 800.
3
Each letter of approval, signed by the Regional Land
Claims Commissioner: Mpumalanga, contained the statement: ‘Kindly
advise
your conveyancers to proceed with preparation of transfer
documents’. The letters of intent were issued.
[6] The conveyancer in each case was the applicants’
attorney, Ms Wellmanns. In the Wevell Trust matter, on 10 September
2004
─ the day before registration was to have taken place ─
the attorney received a letter from the office of the Chief Land
Claims Commissioner, stating:
‘
We
hereby request your office to withdraw the transfer from the Deeds
Office. An investigation is currently in process and the outcome
will
be within three weeks.’
The attorney received an identical letter on the same
date in respect of the Clarke matter; there, documents had also been
lodged
in the Deeds Office and were ‘on preparation’,
which means that registration was about to take place. These transfer
documents were also withdrawn from the Deeds Office by the attorney.
Correspondence followed.
[7] On 5 November 2004 the applicants’ attorney
pointed out in letters addressed to the Minister, the
Director-General, Land
Affairs and the Chief Land Claims Commissioner
that the three-week period had long since expired and that nothing
had in the interim
been communicated to her or her clients. She said:
‘
In
the circumstances my client is left with no alternative but to advise
that should you not give me written notification that I can
arrange
to re-lodge within 14 days of the receipt of this letter, my client
will institute proceedings in the Land Claims Court .
. . for an
order compelling you to do so and thereafter to pay the purchase
price together with costs & interest a tempore morae.
It is regretted by my client that this
step has had to be taken, but the delay is prejudicing him severely,
as well as causing considerable
prejudice to the Community which has
been allocated the farms.’
[8] The replies by the Chief Land Claims Commissioner
dated 15 November 2004 said:
‘
We
refer to your letters of 5
th
November 2004 and would like
to advise as follows:
(1) We confirm that the Chief Land Claims
Commissioner: Mr Tozi Gwanya has informed you that he would let you
know within 3 weeks
of the outcome of the investigation.
(2) Since the letter to yourselves by the
Chief Land Claims Commissioner, it has transpired that the
investigations will take longer
than it was initially anticipated.
(3) Unfortunately we are unable to give
definitive dates by which the investigations would be expected to be
completed, suffice to
say that we would like the process to be
thorough and satisfactory.
(4) We regret the inconvenience which is
being caused to the stakeholders in this claim including your
clients, however we believe
that for the process to be beyond
reproach we are required to undertake proper investigations which we
are currently undertaking.
(5) We are accordingly requesting you to
exercise patience until the process is completed.’
[9] Faced with the delay the applicants’ attorney
wrote on 22 November 2004:
‘
My
clients and the community are being severely prejudiced by the
protracted delays;
My clients would therefore
be willing, since you are unable to confirm a date by which your
investigations would be complete, to accept
your written undertaking
that your Department would pay to my clients on registration of
transfer, interest on the sum of [the purchase
price] at bank
overdraft rates from 20
th
September 2004 [in the Wevell Trust matter; 13 September
2004 in the Clarke matter] (the date by which transfer could have
been registered
had you not instructed me to withdraw the documents
from the Deeds Office,) to date of payment, both days inclusive.
However, my client hereby
nonetheless without prejudice, reserves his rights to institute
proceedings in the Land Claims Court within
14 days from 9
th
November 2004, as set out in the penultimate paragraph
of my letter to you of 5
th
November 2004.’
The suggestion made by the applicants’ attorney
seems to me to have been perfectly reasonable. It was ignored.
THE APPLICATIONS
[10] Applications on notice of motion dated 9 December
2004 were brought in both matters. The relief sought in each matter
was an
order directing the respondents:
(1) within seven days of the order to authorise and
instruct the applicants’ attorney to lodge all the required
documents with
the office of the Registrar of Deeds, Pretoria, for
the registration of the farms into the name of the Ndwandwa Community
Trust;
(2) ‘forthwith on or after the date of
registration of transfer’ to pay the purchase price agreed
upon;
(3) to pay interest a tempore morae at 15,5 percent per
annum from receipt of the date of demand ie 15 November 2004, to date
of payment;
and
(4) to pay the applicants’ costs of suit.
[11] The founding affidavits in each case pointed out
that the applicants were suffering prejudice consisting in the loss
of interest
on the purchase price. They concluded, with reference to
the letters of 5 November 2004 quoted above:
‘
In the premises the First to
Fourth Respondents are in default of their obligations under and in
terms of the Agreement as the period
allowed in the said notice . . .
has now expired.’
The reply to these latter paragraphs in the answering
affidavits was:
‘
Respondents
dispute the allegations contained in this paragraph. I submit that
despite the contention by the Applicant to the contrary,
there is a
rational basis for the investigations which led to the suspension of
the transfer and registration process. The basis
of the investigation
is that there is a reasonable and well founded suspicion that the
valuation of all the farms involving the Ndwandwa
Community was
tainted with irregularities. To that extent, the Third Respondent has
appointed a suitably qualified valuer to review
the valuation process
which was used in the valuation of all farms which were bought on
behalf of the Ndwandwa Community. In particular
it is suspected that
some of the valuation amounts affecting most of the subject farms
were grossly and unreasonably inflated. I
accordingly submit that
having regard to the prejudice that the Applicant is alleged to be
suffering and the considerable prejudice
that is likely to result to
the Respondents (and by extension to the public) should the
investigations not be undertaken, the balance
of convenience favours
the Respondents undertaking a proper and thorough investigation
without unnecessary pressure from the affected
parties.
Wherefore the Respondents pray that it
would please this Honourable Court to dismiss this application with
costs on an attorney and
client scale.’
That was the only point of substance raised in
opposition to the applications. There was also a bare denial that the
applicants were
suffering prejudice. The answering affidavits were in
each case deposed to by Mr Andreas, the legal advisor to the Chief
Land Claims
Commissioner.
[12] I pause to remark that the phrase ‘balance of
convenience’ in the passage just quoted from the affidavit of
Andreas
is entirely inappropriate in the context in which it was
used. The phrase is of course well known in applications for interim
interdicts.
And that indeed is the course the respondents should have
followed. They should have applied for an order interdicting transfer
of
the properties pending a date by which they anticipated that the
investigations would be completed, and applied to extend that date
if
necessary. In such a case the prejudice to the applicants would to a
large extent have been eliminated by an undertaking to pay
interest
on the agreed purchase prices for the farms, should the investigation
show that the valuations of their farms were not tainted
by any
irregularity. If there were irregularities, the applicants could
hardly complain if they received no interest. And the prejudice
to
the fiscus if there had been irregularities would obviously have
weighed with the court in considering an interim interdict. The
Chief
Land Claims Commissioner, however, has entirely misconceived his
powers and those of the Minister. He said (in his replying
affidavit
in the application for leave to appeal to this court):
‘
It
is respectfully submitted that we [ie the Minister and himself] were
entitled to freeze the transfer of those lands in issue which
had not
yet been transferred and that the [applicants] were not entitled to
proceed to Court to enforce the agreement once they had
received my
letter to that effect and my further letter of 15 November 2004.’
Neither the Chief Land Claims Commissioner nor the
Minister had any ’entitlement’ to stop, unilaterally,
performance of
the contracts of sale; and the applicants had every
entitlement to go to court to enforce them.
[13] The replying affidavits, not surprisingly, pointed
out that Andreas had had nothing to do with either matter at any
stage whatsoever
and that no attempt had been made to obtain
affidavits from the persons who did have knowledge of the events
leading to the conclusion
of the contracts. Notice was given that at
the hearing application would be made for the striking out of the
entire answering affidavits.
The deponents to the replying affidavits
also emphasised, as had their attorney in her letters of 5 November
2004, that the transactions
with which they were concerned stood
independently of the transactions for the purchase of other farms in
the area; they alleged
that their transactions were above suspicion;
and they stated that no irregularity in regard to their contracts had
ever been brought
to their attention. They threw down the gauntlet by
issuing a challenge to Andreas and the respondents ‘to now come
forward
and give details of the investigations’ against them.
Further allegations of prejudice were made. In the Wevell matter, the
following was said:
‘
Apart
from the lost interest mentioned in my last affidavit I continue to
suffer prejudice as a result of the totally unreasonable
attitude of
the Respondents. From the date of the sale to the end of December
2004 the applicant has lost the sum of R25 200
in lost rentals
ie we could have rented out the farm and its house from June of last
year. We have had to preserve the farm and this
cost is about R800
per month again incurred since June of last year ie the sum of
R7 200. In March and again in June of this
year if nothing
happens expenditure will have to be disbursed to maintain and build
fire breaks in a sum of approximately R10 000.
Lastly I have and
will have spent funds on water levies of R6 600 per annum.’
In the Clarke matter, the deponent said:
‘
Apart
from the lost interest mentioned in my last affidavit the Applicants
continue to suffer prejudice as a result of the totally
unreasonable
attitude of the Respondents. From the date of the sale to the end of
December 2004 the applicants have spent about R165 742.00
in
closing down the farms and the holding costs per month until transfer
is passed are R10 815.00 per month. This latter figure
involves
salaries for staff looking after the farms, water taxes, insurance,
electricity, repairs & maintenance and guards. Also
winter is
approaching and the cost of fire breaks will be an approximate amount
of R18 000.00. From March of 2005 there will
be no income tax
relief for me as there is no income from the farms to off set the
expenses.’
[14] Subsequent the delivery of the replying affidavits
the respondents delivered a supplementary answering affidavit in each
case
with a request to the court that they be accepted. The
affidavits were again deposed to by Andreas. In the affidavits
Andreas said:
‘
I
am advised that the Respondents are not entitled to file a second set
of affidavits. I pray, however, that this Honourable Court
will
permit the filing of this affidavit in that there are exceptional
circumstances. First, in the answering affidavit, to the knowledge
of
the Applicant, the First to Fourth Respondents were investigating
allegations of irregularities on the part of the Applicant.
Secondly,
subsequently to the filing of the answering affidavit new facts have
emerged which enabled the First to Fourth Respondents
to take a firm
view in this matter, and who have . . . elected to cancel the
agreement.’
Andreas went on to say that the Department had elected
to cancel the contracts ‘on the basis of a material
misrepresentation
on the part of the applicants alternatively fraud’.
The affidavits continued:
‘
In
support of the above submission, I bring the following facts to the
attention of this Honourable Court which demonstrate that the
seller’s conduct is such which is tantamount to bad faith,
fundamental breach, fraudulent behaviour, in short, conduct that
entitles the Fourth Respondent to lawfully resile from the contract
of sale. The Applicant repudiated and/or fundamentally breached
the
contract by acting in bad faith and/or fraudulently or negligently,
and the Respondents, in particular the purchaser, hereby
elect to
cancel the agreement.’
4
There followed a section entitled ‘The Supporting
Facts’ in which Andreas pointed out that the applicants had had
their
properties valued by Mr Albert Roux. Andreas attached to his
affidavit an unsworn and unsigned document purporting to be an
affidavit
by one Daniel in which he said that Roux had admitted
accepting a bribe to inflate the value of a property known as
‘Vygeboom’
owned by a Mr Visagie which had been sold by
Visagie to the Department; and Andreas also attached an unsworn
report of Mr Derrick
Griffiths, whose expertise was not established,
which pointed out alleged shortcomings in valuations, inter alia by
Roux, of properties
in the area sold to the Department.
[15] The applicants delivered further replying
affidavits in which they pointed out that Andreas’ first
supplementary answering
affidavit was again wholly hearsay. They also
denied in strong terms the fraud alleged against them and disputed
the validity of
the cancellation of the agreements they had concluded
with the Department.
[16] On 14 April 2005 (p 145) a hearing in the Land
Claims Court took place before Gildenhuys J. I quote from his
judgment:
‘
When
the matter came before me, I pointed out some shortcomings in the
respondents’ answering affidavits. One of them was the
unsubstantiated hearsay in Mr Andreas’ affidavits. The
respondents then asked for leave to deliver a second supplementary
answering
affidavit. I accepted the first supplementary answering
affidavit, and granted leave to the respondents to deliver a second
supplementary
answering affidavit. I did so because the integrity of
the restitution process in the Badplaas areas was at issue, and
because public
money was involved. I did not want to allow the inept
drafting of the first two answering affidavits to impede a full
venting of
the serious issues raised therein.’
[17] Second supplementary answering affidavits dated 9
May 2005 were delivered, yet again deposed to by Andreas. The Daniel
affidavit
was annexed, this time properly attested. Further
valuations (again not confirmed under oath) by Griffiths (whose
expertise was again
not set out) and which related specifically to
the applicants’ farms, were annexed. Also annexed was a
document headed ‘Department
of Land Affairs. 1. Ndwandwa
Community Project’. It appears from the minute of the pre-trial
conference that this document
was an extract from a report by Ernst &
Young. The extract annexed was undated, unsigned and unattested and
no indication as
to its author(s) appeared from it. There was no
reference to the document in Andreas’ affidavit in the Wevell
matter due apparently
to some mechanical defect in the printing of
the papers. That matter was nevertheless argued in the court
a
quo
as well as on appeal on the basis that
the missing allegations were the same as the allegations made in the
second supplementary answering
affidavit in the Clarke matter. In
that matter Andreas identified the document as volume 2 of a report
by Ernst & Young ‘which
has recently become available’
(in fact it had become available more than three months previously on
7 February) and he claimed
that
‘
the
facts set out therein demonstrate, with respect, if proven that the
fraud perpetrated on the Respondents [involves] the same role
players
associated with the Applicants’ claim [who] include valuators,
Pieter Visagie, and senior employees of the Second and
Third
respondents’ personnel as well as potentially representatives
of the [Ndwandwa Community Trust]’.
The Wevell transaction is not referred to in the
document at all. The only reference to the Clarke transaction is a
statement that
they had been paid ─ which is untrue.
[18] In the second supplementary answering affidavit in
the Wevell Trust matter Andreas repeated the allegation made in his
first
supplementary answering affidavit that Roux, the valuer of both
the Wevell Trust property and Visagie’s Vygeboom property,
was
bribed by Visagie to inflate the value of the latter property; and
Andreas went on to make the additional allegation that Roux
had
knowingly used the false and inflated valuation of the Vygeboom
property to determine the market value of the Wevell Trust property.
The answer to these allegations given in the second supplementary
replying affidavit in the Wevell Trust matter was simple and
conclusive:
namely, that Roux could not have used the valuation of
the Vygeboom property to support his valuation of the Wevell Trust
property
as the Vygeboom valuation did not exist at that time ─
it was compiled subsequent to the valuation of the Trust’s
property.
[19] Andreas also alleged that Visagie in his capacity
as chairman of the Badplaas Development Forum had acted on behalf of
the Wevell
Trust and that the Trust had benefited from his fraudulent
activities. In the second supplementary replying affidavit, the
deponent
on behalf of the Trust said that the Trust had had nothing
to do with Visagie and that the negotiations in respect of the
Trust’s
property had been carried on by Dr Pieter Kieviet, the
coordinator of a subcommittee of Agri-Badplaas. Kieviet, as he
confirmed in
his supporting affidavit, negotiated directly with the
Regional Land Claims Commissioner and those negotiations took place
long before
the formation of the body of which Visagie subsequently
became the chair.
[20] Similar allegations were made by Andreas in the
Clarke matter. There, too, Mr Clarke senior, the deponent to the
second supplementary
replying affidavit, demonstrated that the
valuation of each of the Clarke properties antedated the valuation by
Roux of the Vygeboom
property, in some cases by several months, and
said that he and his son had negotiated personally with the Regional
Land Claims Commissioner
and not through Visagie.
[21] It is quite apparent that in each of the two
matters Andreas did not know what he was talking about. That is not
surprising,
as he was not involved in any way in the negotiations
which led to the conclusion of the contracts. What is surprising is
that he
continued to depose to affidavits when he did not have the
necessary knowledge. No reason whatever was given why those involved
in
the negotiations and who had personal knowledge of what had
transpired, did not depose to affidavits.
[22] A joint pre-trial conference in respect of both
matters was held on 24 May 2005 with Gildenhuys J presiding.
Paragraphs 5 and
6 of the minute read:
‘
5.
The parties are agreed that if it is found that the deeds of sale
were properly cancelled, the applications must be dismissed.
On the
other hand, if it is found that the deeds of sale were not properly
cancelled, the applicant would be entitled to its relief.
6. The applicant has indicated that it
will not seek a referral to evidence of any issue.'
[23] The matter again came before Gildenhuys J on 13
June 2005. At the earlier hearing on 14 April senior counsel then
representing
the respondents had handed up heads of argument which
said the following:
’
24.
The applicant has not sought in this application to test the validity
of the cancellation. The Applicant must elect whether it
seeks to
test the validity of the cancellation or not.
25. In the circumstances the appropriate
order is to dismiss the application with costs.’
At the hearing on 18 June, the same senior counsel
handed up a second set of heads of argument which said:
‘
[T]he
Applicant made it clear at the pretrial conference that it does not
seek to refer this matter to trial nor to seek any matter
to be
referred to oral evidence. The Applicant has elected to stand by the
papers and if it cannot make out a case on the papers,
to fail. . . .
We accordingly submit that this application ought to be heard and
decided on the basis of the facts contended for
by the Respondents as
well as those facts of the Applicant’s contentions which are
not controverted by the Respondents.’
[24] Gildenhuys J accordingly considered the issue
isolated at the pre-trial conference on the papers before him, as he
was expressly
requested to do by both sides, and applied the
following well-known test in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
:
5
‘
It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicant’s affidavits which
have been admitted
by the respondent, together with the facts alleged by the respondent,
justify such an order. The power of the
Court to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances the denial
by respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or
bona fide
dispute of fact (see in this
regard
Room Hire Co
(Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at
1163-5;
Da Mata v
Otto NO
1972
(3) SA 858
(A) at 882D-H). If in such a case the respondent has not
availed himself of his right to apply for the deponents concerned to
be
called for cross-examination under Rule 6(5)(g) of the Uniform
Rules of Court (cf
Petersen
v Cuthbert & Co Ltd
1945
AD 420
at 428;
Room
Hire
case
supra
at 1164) and the Court is
satisfied as to the inherent credibility of the applicant’s
factual averment, it may proceed on the
basis of the correctness
thereof and include this fact among those upon which it determines
whether the applicant is entitled to
the final relief which he seeks
(see eg
Rikhoto v
East Rand Administration Board and Another
1983 (4) SA 278
(W) at
283E-H).’
[25] The learned judge’s attitude to the hearsay
evidence in Andreas’ affidavit is set out in the following
paragraph
of his judgment:
‘
[Counsel
for the applicants] applied for the striking out of the hearsay and
other objectionable matter in Mr Andreas’ affidavits.
This
Court may, under
sec 30(1)
of the
Restitution of Land Rights Act No
22 of 1994
, admit evidence which would be inadmissible in any other
court of law. In terms of sec 30(3) of the Act, the Court must give
such
weight to any evidence so adduced as it deems appropriate. I did
not strike out the hearsay and other objectionable evidence, but
I
will give it very little or no weight, especially where it conflicts
with evidence adduced by the applicant.’
[26] In regard to the fraud alleged in the Wevell
matter, Gildenhuys J reasoned:
‘
If
. . . the papers before me do not contain sufficient acceptable
evidence to support a finding that the agreement of sale was validly
cancelled, I must hold that it is still in force.
[Counsel] for the respondents did not
seriously contend that the allegations of fraud have been
established. The respondents did not
demonstrate any fraudulent
conduct on the part of the applicant. They relied on jobbery by Mr
Visagie particularly on the allegation
by Daniels that Roux told him
that he was bribed by Visagie to inflate the Vygeboom valuation.
Apart from unsubstantiated hearsay
proffered by Mr Andreas, there is
no testimony of any evidential value which ties Visagie to the Wevell
negotiations. On the contrary,
Mr Wevell said Dr Kieviet negotiated
on the applicant’s behalf; Visagie was not involved at all.
. . .
In his heads of argument
[counsel for the respondents] submitted that Roux was corrupted by
Visagie, and that Roux knowingly used
the false and inflated value of
the Vygeboom property as a comparable sale to determine the open
market value of the Wevell property.
Therefore, so the argument ran,
Roux acted fraudently, in a
mala fide
manner and/or was manifestly unjust in determining the
market value of the Wevell farm to be R3 410 000. This
determination
was instrumental in reaching agreement on the purchase
price for the farm.
. . .
During argument it became apparent that
the criticism of Roux’s valuation, as contained in [counsel’s]
heads of argument,
was unfounded. Roux made his valuation of the
Wevell farm on 4 March 2003. The so-called inflated valuation of the
Vygeboom property
was made by Roux during June 2003, some three
months later.’
[27] In regard to the Clarke matter, Gildenhuys J
reasoned:
‘
The
applicants in the Clarke matter conducted direct negotiations with
officials of the Regional Land Claims Commissioner. According
to Mr
JF Clarke, these negotiations occurred long before Visagie ever
became involved with the formation of the Badplaas Development
Forum.
Neither Visagie nor Dr Kieviet were involved in the negotiations
between the applicants and the officials.’
[28] The last two paragraphs of the judgment read as
follows:
‘
I
conclude that the contracts of sale in both cases have not been
validly cancelled. The applicants are entitled to specific
performance
of the contracts. . . . There is also no basis for an
order for interest.
This Court usually does not make costs
orders, except in extraordinary circumstances. The circumstances of
this case warrant a costs
order. Although it is understandable that
the respondents wanted to protect the state against losses caused by
fraud, they continued
defending the claims long after it must have
been apparent to them that the cancellation of the agreements was
invalid. The wild
and unsubstantiated allegations made by Mr Andreas
against the applicants were entirely unwarranted. If there was fraud
or dishonest
conduct on the part of other parties involved in other
restitution transactions in the Badplaas area, that is no reason to
tar the
applicants with the same brush.’
THE APPLICATION FOR LEAVE TO APPEAL AND CONDONATION
[29] The judgment of the court
a
quo
was handed down on 26 July 2005. Full
reasons were given. Accordingly, in terms of rule 69(1)(b) of its
rules, any notice of application
for leave to appeal had to be
delivered within 15 days after that date, ie by 17 August. The
application was only received on 14
September. It was accompanied by
an application for condonation in terms of rule 32(4) of the Rules of
the Land Claims Court, which
permits that court to grant condonation
‘on good cause shown’. I propose examining first the
reasons for the delay and
then the prospects of success on appeal.
The reasons for the delay
[30] The judgment was received at the State Attorney’s
office on 26 July. The Registrar’s covering letter did not
indicate
the name of the attorney dealing with the matter or the
reference number of the State Attorney’s office in respect of
either
of the applications. The staff in the registration section
took three days to identify the correct person.
[31] On 1 August the State Attorney sent a copy of the
judgment to the Department of Land Affairs by ordinary post. The
State Attorney
was informed by Andreas that the department’s
internet service was ‘not available’ to access the
judgment ─
whatever that means.
[32] On 5 August the applicants’ attorney advised
the State Attorney by telefax that she would be relodging the
documents in
the Clarke matter as soon as the rates clearance
certificates were obtained and indicated that she would expect
payment of the purchase
price in terms of the court order. On the
same day the attorney asked the State Attorney to confirm that the
letters of intent issued
in the Wevell Trust matter would be paid on
registration of transfer in terms of the court order.
[33] On 12 August the State Attorney replied to the
letters of 5 August, saying that ‘We are obtaining instructions
from our
client and will revert back to you in due course’. On
18 August, the day after any application for leave to appeal had to
be
delivered, the attorney telefaxed the State Attorney confirming
that the Clarke papers had been lodged at the Pretoria Deeds Office
and asking for confirmation that the purchase price would be paid
into her trust account on registration of transfer as ordered by
the
court. The attorney undertook to advise the State Attorney as soon as
the Clarke documents were on preparation.
[34] The judgment was received by the respondents in
‘mid August’ ─ the specific date does not appear
from the record.
It was discussed internally, and then with the
Minister. These discussions took until 23 August. On 24 August
Andreas instructed
the State Attorney to brief new counsel to advise
on the prospects of success of an appeal and indicated that if the
advice was that
grounds existed, ‘an application for
condonation for the late lodgement of the appeal should be proceeded
with forthwith’.
On the same day that these instructions were
received, the State Attorney briefed counsel with a copy of the
judgment of the Land
Claims Court and asked for an answer by 30
August (a week later) as both attorneys in the State Attorney’s
office dealing with
the matter would be on leave until then.
[35] Also on 24 August the applicants’ attorney
sent a telefax to the State Attorney confirming that the Wevell Trust
transaction
had that day been lodged at the Deeds Office. On the same
day, the State Attorney advised the seller’s attorney by
telephone
that the respondents intended applying for leave to appeal
and condonation for the delay. The attitude of the applicants’
attorney,
confirmed in a telefax dated 26 August, was that she was
proceeding with registration of transfer in both matters. She said
explicitly
in the telefax: ‘I will only desist from registering
if a proper Application for leave to appeal is filed beforehand’
and concluded:
‘
Please
note that registration can be anticipated within 10 days of date of
lodgement. I therefore await to hear from you
as
a matter of extreme urgency
.’
(Emphasis in the original.)
[36] On 30 August counsel advised the State Attorney
that he was of the prima facie view that there were grounds to appeal
but required
a full copy of the application papers which had not been
sent to him. On the same day the applicants’ attorney advised
the
State Attorney by telefax that the Clarke documents were on
preparation and again requested confirmation that the purchase price
would be paid into a trust account on registration of transfer.
[37] On 2 September the applicants’ attorney
informed the State Attorney by telefax that the Clarke transaction
had been registered
at the Pretoria Deeds Office and requested
payment of the purchase price into her trust account. In a telefax
dated the same day,
the State Attorney advised the applicants’
attorney in respect of both matters that
‘
our
office cannot give any guarantees, our client has instructed us to
appeal the Land Claims Court Order, the documents of which
will be
served on yourselves in due course’.
That telefax was only received by the applicants’
attorney on 5 September, by which time the Clarke transactions had
already
been registered. The applicants’ attorney replied to
the State Attorney’s telefax of 2 September on 5 September by
pointing
out that the time limit for lodging an application for leave
to appeal had expired on 17 August and transfer had already been
registered
in the Clarke matter.
[38] The applicants’ attorney advised the State
Attorney on 6 September that the Wevell Trust transaction was on
preparation
at the Deeds Office, Pretoria, on that day. Also on 6
September the applicants’ attorney sent a telefax to the State
Attorney
to make arrangements for the Ndwandwa Community Trust to
take occupation of the Clarke property. On that day a consultation
was held
with counsel briefed by the State Attorney to enable an
application for condonation to be drawn up.
[39] On 12 September the applicants’ attorney
confirmed that transfer had been registered that morning in respect
of the Wevell
Trust property and requested payment of the purchase
price into her trust account. On the same day the applicants’
attorney
wrote letters to the Minister, the Director-General, and the
Chief Land Claims Commissioner pointing out that no application for
leave to appeal had been received, emphasising that more than three
weeks had elapsed since the last day upon which such an application
could be brought and informing them that unless payment was made
within five days in the Clarke matter she would make application
to
the Land Claims Court to commit for contempt whoever was responsible
for the delay. This letter was hand delivered to the addressees
and
telefaxed to the State Attorney on 14 September.
[40] The applications for condonation, dated 13
September, were then delivered. They were nearly a month out of time.
[41] As pointed out by the
court
a quo
, the
affidavit filed by the State Attorney merely sets out the course of
events from the delivery of the judgment up to the lodging
of the
condonation application. There is no explanation why application for
leave to appeal was not made within the time limit prescribed
by rule
69(1)(b) of the Land Claims Court rules. I respectfully agree with
Gildenhuys J that the respondents adopted a very casual
approach.
They simply took the amount of time they wished and ignored the
repeated written warnings addressed to them via the State
Attorney.
The applicants were fully entitled to proceed as they did ─ as
Holmes JA said in
Federated Employers Fire &
General Insurance Co Ltd v McKenzie
:
6
‘
The
late filing of a notice of appeal particularly affects the
respondent’s interest in the finality of his judgment ─
the time for noting an appeal having elapsed, he is
prima
facie
entitled
to adjust his affairs on the footing that his judgment is safe; see
Cairns’
Executors v Gaarn
,
1912 AD 181
at p. 193, in which Solomon, JA, said:
“
After
all the object of the Rule is to put an end to litigation and to let
parties know where they stand.”’
The amount of the selling price in each case was
substantial and the court
a quo
had
ruled on 26 July 2005 that the applicants were only entitled to
interest after registration of transfer. The applicants proceeded
with transfer after ample and repeated notice had been given to the
State Attorney of their intention to do so and after the date
by
which an application for leave to appeal had to be made. In all the
circumstances, a demonstrably good case on the merits would
be
required before condonation could be considered.
Prospects of success on appeal
[42] Counsel for the respondents advanced two arguments
in regard to the prospects of success of an appeal. The first
submission was
that the facts alleged by the respondents in the three
answering affidavits deposed to by Andreas created a dispute of fact
on the
papers as to whether the respondents were entitled to cancel
the contracts because of fraud perpetrated by the applicants or their
agents, and that this dispute of fact precluded final relief being
granted to the applicants. In other words, the respondents’
first argument was that the case fell within the second category
enumerated in
Room Hire Co (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd
7
viz ‘The respondent may (b) admit the applicant’s
affidavit evidence but allege other facts which the applicant
disputes’.
The second submission was that even if the
respondents’ affidavits did not raise an actual conflict of
fact, the court
a quo
should,
in view of the allegations made, have referred the matter for the
hearing of oral evidence.
[43] The allegations relied on by counsel for the
respondents appear from the extract from the report prepared by Ernst
& Young;
the valuations of the applicants’ farms performed
by Griffiths; and the affidavit of Daniels and letters written by his
attorney
to the Land Claims Commissioner, Mpumalanga and the
Registrar of the SA Council for Property Valuators Profession.
Counsel also criticised
Roux, the valuer appointed by the applicants,
in certain respects. I shall deal with each in turn. Before doing so,
it is necessary
to emphasise two aspects. The first is that the only
issue for the court
a quo
to
decide on the merits was whether the respondents were entitled to
cancel the sale agreements because of fraud. The second is that
the
case argued before this court was not properly made out in the
answering affidavits deposed to by Andreas. The case that was
made
out, was conclusively refuted in the replying affidavits as I pointed
out in paragraphs [18] to [20] above. It is not proper
for a party in
motion proceedings to base an argument on passages in documents which
have been annexed to the papers when the conclusions
sought to be
drawn from such passages have not been canvassed in the affidavits.
The reason is manifest ─ the other party may
well be prejudiced
because evidence may have been available to it to refute the new case
on the facts. The position is worse where
the arguments are advanced
for the first time on appeal. In motion proceedings, the affidavits
constitute both the pleadings and
the evidence:
Transnet
Ltd v Rubenstein
,
8
and the issues and averments in support of the parties’
cases should appear clearly therefrom. A party cannot be expected to
trawl through lengthy annexures to the opponent’s affidavit and
to speculate on the possible relevance of facts therein contained.
Trial by ambush cannot be permitted.
[44] The passage in the Ernst & Young report relied
on in the argument advanced in this court comprises less than half a
page
of the 25 pages annexed. Specific attention was not drawn to
this passage in Andreas’ affidavit. The import of the passage
is that valuers who were appointed by or on behalf of the respondents
met with Visagie during August 2003 to review the valuations
of the
farms made by the former; that the valuations were increased in a
report backdated to 23 June 2003; and that the valuer principally
responsible for the valuations was unable to justify the increases to
Ernst & Young. The submission in argument was that all
of this is
evidence of a fraud perpetrated on the respondents. But the valuation
submitted by the applicants was done by Roux, who
is not implicated
in the passage relied on in the report; and Roux did his valuation on
4 March 2003, some four months before the
meeting to which the report
refers. There is simply nothing to suggest that the applicants (or
Roux) were a party to any fraud. The
valuers present at the meeting
were not appointed by the applicants; according to the applicants,
they had nothing to do with Visagie
(see paragraphs [19] and [20]
above); and no such connection was remotely demonstrated by any
credible evidence produced by the respondents.
[45] Much was made in argument of the valuations
performed by Griffiths. I have already pointed out that Griffiths’
qualifications
are not set out. But that apart, the values arrived at
by him do not suggest that the transactions were fraudulent.
Griffiths valued
the Wevell property at R2 300 000 and the
Clarke properties at R8 609 000. Roux valued the Wevell
property at
R3 410 000 and the Clarke properties at
R11 093 370. An independent valuer, Mr South, was retained
by the applicants
and filed an affidavit to counter the valuations by
Griffiths. Gildenhuys J, whose expertise in the field of
expropriation litigation
is well known, found South’s valuation
to be ‘fully motivated and well reasoned’. This valuation
was not attacked
on appeal. South valued the Wevell property at
R2 900 000 which is R510 000 lower than the Roux
valuation and R600 000
higher than the Griffiths valuation; and
the Clarke properties at R10 250 000, which is R843 000
lower than the Roux
valuation and R1,7 million higher than the
Griffiths valuation. All this simply goes to show, as found by the
court
a quo
, that
values of the same property made by different valuers, all of them
honest and competent persons, can be far apart. As Scott
JA said in
Abrams v Allie NO
:
9
‘
This
Court has in the past frequently commented on the nature of the
inquiry [to determine the market value of property] and hence
the
approximate nature of its result. In
South
African Railways v New Silverton Estate Ltd
1946 AD 830
at 838 Tindall JA
stressed the importance of bearing in mind that a valuation “is
to a material extent a matter of conjecture”.
Ogilvie Thompson
JA in
Estate Marks v
Pretoria City Council
1969
(3) SA 227
(A) at 253A described a valuation as “essentially a
matter which is in the realm of estimate”. Botha JA in
Bestuursraad van
Sebokeng v M & K Trust & Finansiële Maatskappy (Edms)
Bpk
1973
(3) SA 376
(A) at 391E similarly described it as “noodwendig ‘n
kwessie van skatting in die lig van al die omstandighede”.
Nothing, I think, demonstrates this more than the regularity with
which good and honest valuers arrive at relatively widely different
conclusions.’
[46] The Daniel affidavit and the letters written on his
behalf do not implicate the applicants in any fraud. The affidavit
does prima
facie establish that Roux accepted a bribe from Visagie in
return for which he increased the value of a property owned by
Visagie.
But as I have now repeatedly pointed out this occurred some
months after he valued the applicants’ farms. Daniel said
nothing
about the values attributed by Roux to these farms. Accepting
in favour of the respondents that the honesty of Roux may be suspect,
there is nothing to gainsay the evidence of the applicants that they
were not guilty of any fraud.
[47] Other criticisms of Roux were advanced in argument.
It was pointed out that Roux’s valuation of the Wevell Trust
property
was performed for the purposes of the Capital Gains Tax
legislation and was also used by the Trust to justify its asking
price; but
that does not suggest fraud. The very first paragraph of
the report reads:
‘
1.
INSTRUCTION
From : Mr. D. Wevell
Date Valued : 04 March 2003
Date of Valuation : 01 October 2001
Reason for valuation : Determine market
value For Capital Gains Tax.’
The reason for the valuation was there for all to see.
Had the respondents considered the report unacceptable because of the
date
at which or the purpose for which the Wevell Trust property was
valued, they could have rejected it.
[48] Roux was also criticised because the only
comparable sale to which he referred in his valuation of the Wevell
Trust property
was taken by him to have been at a figure of R1,6
million whereas the price was in fact R1,2 million. But as pointed
out by the court
a quo
,
that does not have the effect of vitiating his report, much less
provide support for an allegation of fraud on his part and even
less
fraud on the part of the Wevell Trust. The basis on which the report
was done was not the comparable sales method in any case,
but the
depreciated replacement value method of valuation.
[49] There was an application for leave to adduce
further evidence on appeal. The evidence comprised the introductory
and first part
of the report by Ernst & Young of which an extract
had been annexed to the respondents’ second supplementary
answering
affidavit, and an affidavit by Mr Wayne Fergusson.
Fergusson was employed by Ernst & Young and headed the team
investigating
the land purchase project of which the applicants’
farms formed part. His affidavit was annexed to the respondents’
replying
affidavit in the application for leave to appeal to this
court. It contains allegations relevant to the merits of the appeal.
In
the event counsel representing the respondents moved only for the
inclusion of the documents from the Ernst & Young report in
the
record of the appeal, and not the Fergusson affidavit.
[50] In my view the application even in its limited form
should not be granted. There has been no acceptable explanation as to
why
the documents were not annexed to the respondents’ second
supplementary answering affidavits. They became available at the
same
time as the extract from the report annexed to those affidavits. The
report was presented to the Department of Land Affairs
on 7 February
2005 and the affidavit was deposed to on 9 May 2005 ─ more than
three months later. The explanation for not annexing
the part of the
report which the respondents now wish to be included in the appeal
record was that there was a misunderstanding (presumably
between the
State Attorney and counsel) as to what was to be annexed. But if that
is so, steps should have been taken to put the
missing pages before
the court at the hearing on 13 June. In the absence of a ‘reasonably
sufficient explanation, based on
allegations which may be true, why
the evidence which it is sought to lead was not led at the trial’
10
─
and there is none ─ the application must
fail.
[51] The applicants asked for the costs of the
application to lead further evidence to be awarded to them on the
scale as between
attorney and client. I consider this request to be
amply justified. The founding affidavit was prolix and argumentative
and included
lengthy documents already before the court. The initial
attempt to introduce the affidavit of Fergusson was clearly
inappropriate.
Even if the application was not intended to be
vexatious, it had that effect and a punitive costs order is justified
for that reason:
Johannesburg City Council v
Television & Electrical Distributors (Pty) Ltd
.
11
The costs must include the costs of the applicants’
application to strike out passages in the respondents’ founding
affidavit
which was met by a further affidavit delivered by the
respondents which cured the defect ─ although there is no basis
for ordering
the costs of this latter application to be paid on a
punitive scale.
[52] In my view, when the evidence (such as it was)
before the court
a quo
is
considered in totality, it cannot remotely be said that the
respondents created a dispute of fact, on the basis for which their
counsel contended in his first argument, as to whether they were
entitled to cancel the contracts because of fraud. I accordingly
turn
to consider the alternative argument, namely, that the court
a
quo
should have referred the matter for the
hearing of oral evidence in terms of its rule 33(8), which
corresponds to Uniform Rule of
Court 6(5)(g) and reads:
‘
Where
an application cannot properly be decided on affidavit, the Court may
dismiss the application or make any other order with a
view to
ensuring a just and expeditious decision. Without limiting this
discretion, the Court may, on such conditions as it may determine
─
(a) order that oral evidence be heard on
specific issues with a view to resolving any dispute of fact; and
(b) order any deponent to appear
personally or grant leave for him or her or any other person to be
subpoenaed to appear and be examined
and cross-examined as a witness;
or
(c) refer the matter to trial with
appropriate directions on further procedure.’
[53] In the first supplementary answering affidavits in
each case Andreas submitted that:
‘
[I]t
is in the interests of justice and fair play that the Respondents be
permitted to cross-examine Roux and to demonstrate that
the property,
being the subject matter of this sale agreement, is the result of
fraudulent . . . over-valuation, and with the knowledge
by the
Applicant that the Respondents will rely on the valuations in
determining the purchase consideration’.
In the same affidavit Andreas said:
‘
I
also respectfully submit that this dispute if indeed the Applicant
does not accept that the deed of sale had been lawfully cancelled,
be
referred to trial or oral evidence so that the version of Daniel set
out in annexure “A2” [his unsigned affidavit]
is
presented under oath ─ he be subpoenaed to do so in the
interests of justice and all other concerned parties be tested by
viva voce
evidence. In this way, the
truth can prevail by way of a fair and just process.’
The affidavit concluded as follows:
‘
I
pray that this Honourable Court dismisses the application for
specific performance
alternatively
refers the matter to trial
further
alternatively
refers the disputes to oral
evidence.’
[54] In the second supplementary answering affidavit in
each case Andreas said:
‘
If
oral evidence was led, and if the Respondents’ legal
representatives were given an opportunity to cross-examine the
Applicant
and the original valuers, I am of the view that such
evidence would clearly indicate the giving of a fraudulent valuation
in respect
of the Applicant’s property, whether or not the
Applicant was knowingly a party to that fraud.’
[55] No affidavits were filed by valuers employed by, or
officials in the employ of or who had been in the employ of, the
respondents
who had personal knowledge of what had transpired when
the properties were valued and the purchase prices determined. There
was no
indication that such persons were available to the
respondents, or would give evidence in support of the allegations of
fraud if
subpoenaed.
[56] Where a respondent makes averments which, if
proved, would constitute a defence to the applicant’s claim,
but is unable
to produce an affidavit that contains allegations which
prima facie establish that defence, the respondent should in my view,
subject
to what follows, be entitled to invoke Land Claims Court Rule
33(8) or Uniform Rule of Court 6(5)(g). Such a case differs from the
situation discussed in
Peterson v Cuthbert &
Co Ltd
12
and the
Room Hire
case,
13
alluded to in that part of the
Plascon-Evans
decision quoted in para [24] above which refers to those
two cases. There, the respondent puts in issue the facts relied upon
by the
applicant for the relief sought by the latter. In the
situation presently being considered the respondent may not dispute
the facts
alleged by the applicant, but does seek an opportunity to
prove allegations which would constitute a defence to the applicant’s
claim. In the former case the respondent in effect says: given the
opportunity, I propose showing that the applicant will not be
able to
establish the facts which it must establish in order to obtain the
relief it seeks; and in the latter the respondent in effect
says:
given the opportunity, I propose showing that even if the facts
alleged by the applicant are true, I can prove a defence. (It
is no
answer to say that motion proceedings must be decided on the version
of the respondent even when the onus of proving that version
rests
upon the respondent,
14
because
ex hypothesi
the respondent is unable to produce evidence in
affidavit form in support of its version.) It would be essential in
the situation
postulated for the deponent to the respondent’s
answering affidavit to set out the import of the evidence which the
respondent
proposes to elicit (by way of cross-examination of the
applicants’ deponents or other persons he proposes to subpoena)
and
explain why the evidence is not available. Most importantly, and
this requirement deserves particular emphasis, the deponent would
have to satisfy the court that there are reasonable grounds for
believing that the defence would be established. Such cases will
be
rare, and a court should be astute to prevent an abuse of its process
by an unscrupulous litigant intent only on delay or a litigant
intent
on a fishing expedition to ascertain whether there might be a defence
without there being any credible reason to believe that
there is one.
But there will be cases where such a course is necessary to prevent
an injustice being done to the respondent.
[57] Gildenhuys J came to a different conclusion. In his
judgment refusing condonation for the late noting of the application
for
leave to appeal, where it was argued for the first time by new
counsel representing the respondents that the matter should have been
referred to evidence or to trial, the learned judge said:
‘
[Counsel
for the respondents] argued that, if the matter had been referred to
evidence or to trial at that stage, the benefits of
subpoena,
discovery and cross-examination would have assisted the Court to
determine where the truth lies. This argument comes down
to the
following: the respondents require a referral to evidence or to trial
in the hope that they would thereby obtain the necessary
evidence to
substantiate their defence. Should they have presented evidence of
probative value in their affidavits sufficient to
defeat the
applicant’s case, I would on that evidence have dismissed the
application. Fact is, the evidence was insufficient.
The respondents
cannot ask for a referral to evidence or to trial in order to make up
shortcomings in their own case.
It is trite law that the respondents are
not allowed to lead oral evidence to make out a case which is not
already made out in their
affidavits.’
The learned judge relied on passages in
Carr
v Uzent
,
15
and
Dodo v Dodo
16
and referred also to
Seton Co v
Silveroak Industries Ltd
.
17
[58] In the
Carr
case,
the applicant, and in the
Dodo
case, the respondent, sought to supplement their
affidavits by a reference to oral evidence. It was in that context
that Price J said
in the
Carr
case:
18
‘
[The
applicant] has failed, in my opinion, in his affidavits, read as a
whole, to make out this case, and Rule 9 was never designed
to enable
an applicant to amplify affidavits by additional evidence where the
affidavits themselves, even if accepted, do not make
out a clear
case, but leave the case
ambiguous, uncertain, or fail
to make out a cause of action at all’;
and Wulfsohn AJ said in the
Dodo
case:
19
‘
The
respondent’s case stands or falls on his own averment. I think
the respondent’s request for oral evidence fails in
this
regard. The respondent may not seek to lead oral evidence to make out
a defence for the first time, by way of such oral evidence,
where his
defence is not already made out by him on the papers.’
The position stated in those cases is clearly correct.
The parties concerned could have made the necessary allegations, but
failed
to do so. They sought to supplement the allegations made by a
referral to evidence. That is not permissible. But the cases do not
provide an answer to the problem faced by a respondent which is
unable to produce an affidavit in support of its defence which
contains
sufficient allegations for the relief sought by the
applicant to be refused, in the absence of a reference to evidence or
to trial
at the applicant’s request ─ but who is able to
show that there are reasonable grounds for believing that its defence
will be established if the matter is referred for oral evidence or to
trial at its instance.
[59] In the
Seton
case
relied upon by the court
a quo
the
respondent sought to lead the evidence of one Booysen to prove that a
fraud had been perpetrated on the arbitration tribunal whose
award
the applicant sought to have made an order of court. Booysen refused
to make an affidavit, but, according to the respondents,
he would
give the necessary evidence if subpoenaed. Hartzenberg J cast a
jaundiced eye over the evidence before him in support of
the
application to lead further evidence and concluded:
20
‘
I
cannot but come to the conclusion that this whole question of Booysen
not being willing to give evidence on affidavit is a ploy
by the
respondent to force a further postponement. In my view, it is
generous to the respondent to categorise its application for
the
leading of Booysen’s evidence as a fishing expedition. It is
clearly not the purpose of Rule 6(5)(g) of the Rules of Court
to
allow
viva voce
evidence to be given in such
circumstances. See
Hopf
v Pretoria City Council
1947
(2) SA 752
(T) at 768.’
In the
Hopf
case
referred to by Hartzenberg J the applicants sought an order setting
aside a resolution of the respondent City Council. Roper
J said:
21
‘
Upon
careful consideration of all the facts put before the Court,
therefore, I do not feel that I am justified in drawing the inference
that the change of decision was due to an improper motive on the part
of the Mayor or the councillors who changed their minds.
I come now to Mr.
Pollak’s
alternative application for the personal examination of
the Councillors under Rule 9(
a
).
The power which this Rule gives the Court to order personal
examination of deponents is intended to provide an expeditious method
of settling disputed questions of fact. My inability to draw from the
facts the inference which I have been asked to draw is not
caused by
a conflict as to the facts. I have in the main accepted the facts put
forward in the petition and supporting affidavits
but, as appears
from what I have said, I do not consider that they compel me to the
inference that there was an improper motive actuating
the majority
councillors. In the circumstances personal examination of the
councillors would only be undertaken with the object,
or in the hope,
of eliciting from them admissions which might supplement the
allegations in the petition. In other words, it would
amount to a
fishing excursion. In my view this is not the true function of the
Rule, and accordingly I am not prepared to accede
to the application.
In both cases the parties who sought a reference to oral
evidence had not made out a sufficient case warranting such an
order.
22
Neither case is authority for the proposition that a
respondent is not entitled to seek a reference to oral evidence or to
trial under
any circumstances where it is unable to produce
affidavits containing positive allegations that prima facie establish
a defence.
[60] I return to the allegations made by the respondents
in the present matter. It is unnecessary to traverse them again. It
suffices
to say that I am far from satisfied that this court on
appeal would find that there are reasonable grounds for believing
that a reference
to evidence or to trial would establish the fraud
relied on by the respondents, even assuming that it could be found
that the court
a quo
should
have made such an order where the respondents had not themselves
asked for it ─ a question which has not yet been decided
by
this court
23
and which in itself is not free from difficulty.
CONCLUSION
[61] To sum up: The respondents’ delay in bringing
the application for leave to appeal was not satisfactorily explained.
Prospects
of success on the merits are not demonstrably strong. In
the circumstances I am not prepared to hold that the court
a
quo’s
refusal to grant leave to appeal
should be set aside.
[62] It remains for me to record that the respondents’
application for condonation for the late filing of its counsel’s
heads of argument in this court was not opposed by the applicants and
was granted. The costs occasioned by the application were tendered
by
the respondents on the scale as between attorney and client and an
order to that effect will be made. So will an order directing
the
respondents to pay the costs of the application for condonation for
the late application for leave to appeal to this court.
[63] The following order issues:
1. The application for leave to appeal is dismissed with
costs, including the costs of two counsel where employed. Such costs
shall
include the costs of the whole of the record and the argument
on all issues occasioned by the order of this court given on 28
August
2006.
2. The applicants (the respondents in the court a quo)
are ordered to pay the costs of:
(a)(i) the application for condonation for the late
filing of their counsel’s heads of argument in this court; and
(ii) the application for leave to lead further evidence
on appeal,
both on the scale as between attorney and client; and
(b)(i) the application to strike out, and
(ii) the application for condonation of the late
application for leave to
appeal to this court,
both on an opposed basis but on the scale as between
party and party.
(c) In respect of each order set out in (a) and (b)
above, the costs of two counsel, where employed, shall be allowed.
______________
T D CLOETE
JUDGE OF APPEAL
Concur: Scott JA
Brand JA
Heher JA
Hurt AJA
1
The
relevant section is s 37(7)(c)(ii) of the Restitution of Land Act,
which corresponds to s 21(3)(c)(ii) of the Supreme Court
Act, 59 of
1959.
2
NUMSA
v Jumbo Products CC
[1996] ZASCA 87
;
1996 (4) SA 735
(A).
3
There
is a dispute between the parties in this regard. The figure I have
given was that contained in the letter of intent and judgment
was
given for this amount. Details of the dispute are not relevant for
the purposes of this appeal.
4
The
only basis for cancellation persisted in on appeal was fraud.
5
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634H-635C.
6
1969
(3) SA 360
(AD) at 363A.
7
1949
(3) SA 1155
(T) at 1163.
8
2006
(1) SA 591
(SCA) para 28.
9
2004
(4) SA 534
(SCA) para 25.
10
S
v De Jager
1965 (2) SA 612
(A) at
613C-D;
Loomcraft Fabrics CC v Nedbank
Ltd
[1995] ZASCA 127
;
1996 (1) SA 812
(A) at 824I-825B;
Chevron Engineering (Pty) Ltd v
Nkambule
2004 (3) SA 495
(SCA); see
also
Staatspresident v Lefuo
[1990] ZASCA 6
;
1990 (2) SA 679
(A) at 691C-692F.
11
1997
(1) SA 157
(A) at 177D-E.
12
1945
AD 420
at 428-9.
13
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1163-4.
14
Ngqumba
v Staatspresident
;
Damons
v Staatspresident
;
Jooste
v Staatspresident
,
1988 (4) SA 224
(A)
at 258H-263D.
15
1948
(4) SA 383
(W).
16
1990
(2) SA 77
(W).
17
2000
(2) SA 215
(T).
18
At
390; and see also pp 390-2.
19
At
91H-I.
20
At
231A-B.
21
At
767-8.
22
The
same applies to
Minister of
Environmental Affairs and Tourism v Scenematic Fourteen (Pty) Ltd
[2005] ZASCA 11
;
2005 (6) SA 182
(SCA) ─ see paras 28 to 32.
23
See
Du Plessis v Tzerefos
1979
(4) SA 819
(O) and
Joh-Air (Pty) Ltd v
Rudman
1980 (2) SA 420
(T).