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[2014] ZAGPPHC 84
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Jacobs v Maringa and Others (23269/2013) [2014] ZAGPPHC 84 (18 February 2014)
IN
THE NORTH GAUTENG HIGH COURT OF PRETORIA
REPUBLIC
OF SOUTH AFRICA
Case
number: 23269/2013
In
the matter between:
JACOBS
E
J
..................................................................................................................
Applicant
and
MARINGA,
MANAKE
GILBERT
....................................................................
First
Respondent
MARINGA,
MOKAETSIE
FAITH
...............................................................
Second
Respondent
MAHLABEHOANE,
VUKI
MICHEÁL
.........................................................
Third
Respondent
THE
MINISTER OF AGRICULTURAL
AND
LAND
AFFAIRS
.................................................................................
Fourth Respondent
THE
REGISTRAR OF DEEDS,
PRETORIA
..................................................
Fifth
Respondent
THE
SHERIFF OF THE HIGH COURT,
MOKOPANE
..................................
Sixth
Respondent
PETRUS
JACOBS MARYN VAN STADEN
N.O
........................................
Seventh
Respondent
MARIAAN
BARNARD
N.O
.........................................................................
Eighth Respondent
STANDARD
BANK OF SOUTH AFRICA
LIMITED
.....................................
Ninth
Respondent
JUDGMENT
DE
KLERK AJ
The
Applicant seeks declaratory orders in the following form:
(i)
That
the sale of the property known as Remaining extent of portion 9 (A
portion of portion 1) of Farm 293, Grasvally, Registration
Division K
R, Limpopo Province, to the First, Second, Third and Fourth
Respondent be declared null and void;
(ii)
That
the registration and transfer of the property known as Remaining
extent of portion 9 (A portion of portion 1) of Farm 293,
Grasvally,
Registration Division K R, Limpopo Province to the First, Second,
Third and Fourth Respondent be declared null and void;
(iii)
That
the property known as Remaining extent of portion 9 (A portion of
portion 1) of Farm 293, Grasvally, Registration Division
K R, Limpopo
Province fall back to the insolvent estate of Schalk Willem Adriaan
Lombaard and Emmarenthia Lombaard.
The
Applicant further seeks an order directing the First to Fourth
Respondents to pay the costs of the application.
The
First to Fourth respondents oppose the application and have raised a
point in limine
that
the applicant has no locus standi.
The
common cause facts are:
The
First to Fourth Respondents’ are the registered owners of the
immovable property situated at the remaining extent of portion
9 (a
portion of portion 1) of the Farm 293, Grasvaily, Registration
Division K R Limpopo Province.
The
Applicant is occupying the property in terms of a lease agreement
entered into on or about the 28
th
of February 2010 with
the previous owners of the property, a certain Mr and Mrs Lombaard.
In
terms of the said agreement the Applicant would lease the property
for a period of 5 years with an option to renew the lease.
Standard
Bank obtained judgment against the Lombaards and on the 12
th
of November 2010 the said property was sold in execution.
Subsequent
thereto (on 19 April 2011) the property was registered in the First
to Fourth Respondents’ names.
The
Lombaards’ estate was sequestrated and the Eighth and Ninth
Respondents were appointed as provisional trustees on 15 June
2011.
During
or about August / September 2011 the first to fourth respondents
caused summons to be issued against the Applicant for rental
due in
terms of the lease agreement.
The
Applicants’ contentions:
That
the sale of the property is unlawful and void due to non- compliance
with the provisions of the Subdivision of Agricultural
Land Act 70 of
1970 as the First, Second, Third and Fourth
Respondents
did not obtain written permission from the Minister for the sale.
The
gist of the Applicant’s case is set out as follows:
“
The
sale being unlawful would result in that should I make payment to the
First to Fourth Respondents I might be doing so in terms
of an
illegal alternatively unlawful further alternatively void agreement.
Should the situation then be remedied the party whom
lawfully
purchased the property might very well have a claim against me for
payment of rental for a substantial amount.
In
the alternative to the above the curators might very well have a
substantial claim against me for the payment of rental. I have
concern as to who is legally entitled to the proceeds of the property
and even further, I have certain rights to the property,
none of
which can even be investigated In the current state of affairs.”
The
Respondents’ contentions:
That
the provisions of the Subdivision of Agricultural Land Act 70 of 1970
are not applicable.
Furthermore
as stated herein before the First, Second, Third and Fourth
Respondents have raised a point in limine
that
the applicant has no locus standi on
the
basis that he is neither a curator nor a creditor of the insolvent
estate of the Lombaards, and he was not a party to the agreement
that
was concluded at the sale in execution.
Evaluation
of facts:
The
reason for the application as stated herein before is the Applicant’s
“concern as to who is legally entitled to
the proceeds of the
property”, in other words to whom he must pay the rent.
Consequently,
so the Applicant’s argument runs he might be faced with
substantial claims for rental by a subsequent ‘'lawful”
owner or the curator.
In
my view same does not support the relief claimed by the Applicant. It
is further common cause that the curator of the estate,
with the
information at hand, “consistently refused” to embark
upon this course.
With
regard to the Applicant’s further reservation in respect of
claims by a “subsequent lawful owner” the latter
would
have no legal basis for such a claim against the Applicant.
In
my view none of the Applicant’s rights have been or will be
adversely affected. Be that as it may the issue of standing
must be
decided in
limine
before
the merits are considered.
Locus
standi
is
the Applicant's right to approach the court for the relief sought.
The
duty to prove locus standi
rests
on the party instituting the proceedings.
It
is a requirement that a party to litigation must have a direct and
substantial interest in the right, which is the subject matter
of the
litigation, and in the outcome of the litigation.
The
question as to whether the Applicant has the said right will depend
on the factual and legal context of the case.
As
to the question whether the Applicant had a right to a declarator in
the form sought the court’s power to grant such relief
is
derived solely from S 19 (I) (a) (iii) of the Supreme Court Act. S 19
(I) (a) states that a provincial or local division shall
have power
(iii) in its discretion and at the instance of any interested person,
to enquire into and determine any existing, future
or contingent
right or obligation notwithstanding that such person cannot claim any
relief consequential upon the determination.
Although
the issue of a declaratory is therefore discretionary there are two
stages to the enquiry. In terms of S 19 (1) (a) (iii)
of the Supreme
Court Act 59 of 1959, an Applicant (for a declaratory) must show that
he has an interest in an existing, future
or contingent right. The
right must attach to the Applicant and not be a declaration of
someone else’s right.
The
Applicant must have a direct right concerning the subject matter of
the litigation and not merely a financial interest which
is only an
indirect interest, in such litigation.
The
right or obligation which is the object of the enquiry may be
existing, future or contingent but it must be more tangible than
the
mere hope of a right or mere anxiety about a possible obligation.
(Contact
props 25 proprietary
2000 (3) All SA 443
C)
.
I
am of the view that it is clear that the Applicant has no interest in
any existing future or contingent right or obligation which
flows
from that contract. The court, cannot issue a declaratory in regard
to the rights and duties flowing from a contract to which
the
Applicant was not a party.
In
my view, the Applicant therefore lacks locus standi as he cannot be
regarded as being an interested person as envisaged by S
19 (1) (a)
iii of the Supreme Court Act.
The
application is therefore dismissed with costs.
Signed
at Pretoria on this 18
th
day of February 2014.
Judge
De Kterk AJ
The
Honourable Judge of the
High
Court
Of
Pretoria