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[2013] ZAGPPHC 46
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Ngomane NO and Others v Domar Boerdery Belange (Pty) Ltd and Others (30542/2012) [2013] ZAGPPHC 46 (12 February 2013)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT.
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. 30542/2012
DATE:12/02/2013
In
the matter of:
SANDILE
GODFREY NGOMANE
N.O
................................................................
First
Applicant
STEFAAN
SITHOLE
N.O
......................................................................................
Second
Applicant
MESHACK
THEMBINKOSI SILINDA N.O
….....................................................
Third
Applicant
And
DOMAR
BOERDERY BELANGE (PTY) LTD
…................................................
First
Respondent
GOVERNMENT
OF THE REPUBLIC OF SOUTH
AFRICA
….............................................................................................................
Second
Respondent
MINISTER
OF RURAL DEVELOPMENT AND LAND
REFORM
…....................................................................................................
Third
Respondent
CHIEF
LAND CLAIMS
COMMISSIONER
........................................................
Fourth Respondent
CHIEF
DIRECTOR : DEPARTMENT OF RURAL
DEVELOPMENT,
MPUMALANGA PROVINCE
….........................................
Fifth Respondent
JUDGMENT
Van der Byl AJ:- Introduction
[1
] The Applicants seek, in addition to the usual order of costs and
certain incidental relief, an order in terms of which the
First
Respondent, and all persons occupying through it, be ordered to
forthwith vacate the property known as Portion 53 of the
farm
Tenbosch 162 JU (“the Property”).
[2]
The Applicants are the trustees of the Ingwenyama Simhulu Trust (of
which the beneficiaries are the more or less 6500 members
of the
Hhoyi community) which is admittedly the owner of the Property, it
having been transferred from the Second Respondent, the
Government of
the Republic of South Africa, on 21 November 2011.
[3]
It is common cause -
(a)
that the Hhoyi community lodged a land claim in terms of the
provisions the Restitution of Land Rights Act, 1994 (Act 22 of
1994),
in respect of the “Greater Tenbosch” area consisting of
Portion 45 of the Farm Tenbosch 162, measuring 856,9560
hectares,
Portion 61 of that Farm, measuring 28,1000 hectares and the Property,
measuring 467,5661 hectares;
(b)
that the claim in respect of all these properties farms was settled
at R71 500 000 and the Second Respondent purchased the Property
(together with the other two
Portions)
from Hentiq 2617 (Pty) Ltd and Martiens Landgoed (Pty) Ltd of which
the brothers, Messrs D W Hurter and D A Hurter, were
the only
directors, to whom I will refer as the Hurter brothers.
[4]
The salient terms of the sale agreement relating to the Property
(Annexure C2, record p. 303) finally signed on 12 May 2009
were -
(a)
that the seller, Hentiq 2617 (Pty) Ltd, sells the Property to the
purchaser, the National Department of Land Affairs acting
on behalf
of the Government of the Republic of South Africa at a purchase price
of R26 598 000;
(b)
that occupation and possession of the Property shall be given to the
purchaser one year from the date of payment of the full
purchase
price.
[5]
The Property was, as already indicated, transferred to the Government
of the Republic of South Africa on 19 July 2010 and the
purchase
price was paid on 22 July 2010 so that the seller Hentiq 2617 (Pty)
Ltd, was obliged to vacate the Property on 21 July
2011 which it did
not do in the sense that the Hurter brothers continued to occupy the
Property albeit through the First Respondent,
Domar Boerdery Beiange
(Pty) Ltd, of which they are the only directors.
[6]
It is the First Respondent’s contention that it lawfully
occupies the Property in terms of a valid and enforceable lease
agreement concluded with the Government of the Republic of South
Africa on 12 August 2009 (Annexure SN 14, record p. 143 onwards),
being a date long before any of the relevant transfers took place in
respect of the three properties purchased from Hentiq 2617
(Pty) Ltd
and Martiens Landgoed (Pty) Ltd which seems to provide -
(a)
that it is deemed to have commenced on date of payment of the full
price of the properties which was done 22 July 2010;
(b)
that the properties are leased for a period of five years with a
right of renewal;
(c)
that it would remain in force despite it being transferred to the
community.
[7]
The existence or validity of the lease agreement is vehemently
disputed by the Applicants (and, as is apparent from confirmatory
affidavits annexed to the papers, the relevant officials of the
Department of Land Affairs).
[8]
I am in my view bound to refer in some detail to the averments made
by the respective parties relating to the disputed conclusion
of the
lease agreement.
Relevant
facts relating to the alleged conclusion of the lease agreement
[9]
The parties have, as I will show below, different versions as to what
occurred in relation to the alleged lease agreement, Annexure
SN 14
which is also annexed as Annexure SN 28, record p.167, the second one
containing, incidentally, an important insertion to
which I will
refer soon and of which the author is unknown.
[10]
On the one hand, it is, briefly stated, the First Respondent’s
contention -
(a)
that a lease agreement, which ex post facto appears to contain a
signature of a certain Mr. Meshack Khoza, was concluded between
the
First Respondent and the Government of the Republic of South Africa
on 12 August 2009, ie. before the Property was transferred
to the
Government of South Africa (19 July 2010) and to the Applicants (21
November 2011);
(b)
that in the event of the Court holding that Mr. Khoza did not have
the requisite actual authority to sign the lease agreement,
the
''remainder of the respondents" are estopped from saying that no
lease agreement was concluded.
[11]
On the other hand, it is the Applicants’ contention, referring
to various affidavits filed by various officials in the
Department of
Land Affairs (to which I will refer below), that no such agreement
was concluded as is evident, so it is contended,
from the lease
agreement itself where no date is filled in and any signature
appended at the place provided for the signature of
the lessor.
[12]
There is a dispute between the parties as to what occurred in
relation to the alleged lease agreement.
[13]
I deal seriatim with the respective versions of both parties.
First Respondent’s version
[14]
It is the First Respondent’s version -
(a)
that the Second Respondent initially offered to purchase all the
properties which were owned by Henriq 2617 (Pty) Ltd and Martiens
Landgoed (Pty) Ltd (of which the Hurter brothers were, as already
indicated, the only directors) consisting, in addition to the
Property, also of two other farms, also portions of the farm Tenbosch
162 JU, at an all inclusive purchase price of R73 270 000;
(b)
that the offer was accepted by the two companies;
(c)
that subsequent to the acceptance of the offer the Second Respondent
reneged on the offer in that a further offer was made at
a meeting
that was held at the offices of the Regional Land Claim Commission,
Mpumalanga on 14 August 2008, namely -
(i)
that the Second Respondent offered to purchase the properties at an
all- inclusive reduced purchase price of R71 500 000;
(ii)
that the Second Respondent would, subsequent to the transfer of the
properties to the Second Respondent, enter into a lease
agreement
with Henriq 2617 (Pty) Ltd and Martiens Landgoed (Pty) Ltd (and not
with the First Respondent) in terms of which the
companies would
lease the properties for a period of five years.
[15]
In a letter addressed to the Land Claims Commission on 15 August 2008
by an attorney who seems to have acted on behalf of the
sellers at
the time, it is confirmed that the offer was accepted subject to a
condition that a “section 42D document"
be signed by the
Minister before or on 30 September 2008 (which seems not to have
occurred) and that an offer that the properties
be leased back to the
two companies for a period of five years following the purchase of
the properties (which, so it appears from
the letter, was also
accepted by the companies subject to a written lease agreement being
concluded).
(In
the opposing affidavit it is contended -
(a)
that, although the process ordinarily followed in land claims the
land is restored and transferred directly from the owner to
the
successful claimant, it did not happen in this case because
“competing claims were still pending" and that those
disputes had first to be resolved before the properties could be
transferred to the successful claimants so that in this case the
properties were first transferred to the Government of the Republic
of South Africa;
(b)
that, because of this, it was within the knowledge and contemplated
by the Second and Third Respondents that “a period
would have
followed the sale of the properties to the Second Respondent in which
the land would have laid vacant, unless it remained
in occupation or
was placed in occupation of a party in the period between the sale of
the properties and the restoration thereof
to the successful
claimant' (which, so it is contended, being the reason for the
underlying decision to have concluded the lease
agreement in
question.
If
this was the reason for the conclusion of the lease agreement, the
papers contain no reason or indication why the properties
were leased
by the First Respondent)
[16]
The three properties were, despite the fact that the condition
referred to in the letter was not complied with, sold for a
purchase
price of R71 500 00, but, as is evident from the three deeds of sale,
the issue of the lease of the properties did, although
the granting
of a lease was initially included in the respective (draft) sale
agreements, not form part of the lease agreement,
but, on the
insistence of the Second Respondent, the lease was to be dealt with
separately.
[17]
According to the First Respondent, however, the sale agreements were
concluded on 21 April 2009 on the clear understanding
that the Second
Respondent, Henriq 2617 (Pty) Ltd and Martiens Landgoed (Pty) Ltd
will separately conclude lease agreements in
terms of which the
Second Respondent would lease the properties to Henriq 2617 (Pty) Ltd
and Martiens Landgoed (Pty) Ltd (or their
nominee) for a period of
five years.
[18]
It is against this background that it is now alleged by and on behalf
of the First Respondent -
(a)
that by 17 April 2009 it was confirmed that the respective sale
agreements and lease agreements be prepared by the attorney
of Henriq
2617 (Pty) Ltd and
Martiens
Landgoed (Pty) Ltd, a certain Ms Karin de Jager, and that a certain
Ms. Mthethwa of the Department would attend to minor
amendments to
the various agreements;
(b)
that Ms. De Jager was informed that the respective sale agreements
will be signed by the Regional Land Claims Commissioner,
Mpumalanga
and the lease agree,ment by the Provincial Director General of Land
Affairs after the date of the transfer of the properties
to the
Second Respondent;
(In
relation to these contentions a letter dated 17 April 2009 addressed
by Ms. De Jager to the Regional Land Claims Commissioner
is annexed
to the opposing affidavit and marked Annexure D, record p. 349, in
which it is confirmed that she was acting on behalf
of Henriq 2617
(Pty) Ltd and Martiens Landgoed (Pty) Ltd and pointed out that she
prepared draft deeds of sale and a lease agreement
and that they
await confirmation of his “express intention to lease the
properties” to her clients, being Henriq 2617
(Pty) Ltd and
Martiens Landgoed (Pty) Ltd, for a period of five years - it would
appear that no response to this letter was received)
(c)
that Ms. De Jager, after the conclusion of the sale agreements,
attended a meeting (according to the First Respondent on more
or less
11 May 2009) with the then Provincial Chief Director in the
Department of Rural Development and Land Reform, Ms Leona Archery,
being the person duly authorized to conclude lease agreements in
order to obtain the assurance that the lease agreements
would
be proceeded with and signed if the sale agreements are signed;
(d)
that during the meeting Ms Archery called a certain Mr De Kock, a
legal representative in the employ of the Department, to attend
to
finalize the terms of the lease agreements with Ms De Jager
whereafter it would be signed by her;
(e)
that Ms De Jager furnished the proposed lease agreement to Mr. De
Kock on 6 May 2009;
(f)
that Ms De Jager was thereafter contacted by Mr De Kock on 12 May
2009 by way of an e-mail informing her that Ms Mthethwa would
directly correspond with her with regard to the finalization of the
lease agreement whereafter it could be sent to him to arrange
for the
signing thereof;
(g)
that, following various communications between Ms De Jager on the one
hand and Ms. Mthethwa and Mr De Kock on the other hand,
she was
informed that a lease agreement drafted by Ms De Jager (providing for
the lease of the properties to the First Respondent
(and not to
Henriq 2617 (Pty) Ltd and Martiens Landgoed (Pty) Ltd) for a period
of five years at an annual rental of R715 008 payable
yearly in
arrears) was acceptable and that the First Respondent could attend to
the signing thereof and to furnish same to Mr.
De Kock who would
arrange it to be signed by the Acting Chief Director, Mr. Nkosi (as
Ms Archery had in the meantime been transferred);
(h)
that Ms De Jager then on a date which she couldn’t recall (to
the best of her recollection it was on the same date the
original of
the lease agreement was allegedly signed, namely, 12 August 2009),
called at the office of Mr. De Kock, but as he was
not available she
handed the agreement to Mr. Khoza;
(i)
that, according to Ms De Jager, Mr Khoza, according to her
recollection, either “left her presence and returned with the
copy of the signed lease agreement or ... she left the original of
the lease agreement with Khoza and, after having left the offices
of
the Third Respondent (she) enquired telephonically from Khoza whether
the lease agreement was signed and that Khoza informed
(her) that it
was properly signed” and that it was thereafter faxed to her;
(j)
that the First Respondent and Ms De Jager, acting on the conduct of
the Second Respondent and the Third Respondent, did not
doubt
whatsoever that the signature that appeared on the document furnished
was that of an authorized official;
(k)
that the First Respondent then took occupation of the properties on
12 August 2009 (and not as provided in the alleged lease
agreement on
22 July 2010) and still remains in occupation (it would, however,
appear that at that time the Property was still
registered in the
name of the seller and occupied by the seller).
[19]
The Applicants’ version, however, differs in various material
respects from the First Respondent’s version.
Applicants’ version
[20]
The Applicants deny, as reflected in both their founding and replying
affidavits, that any lease agreement as contended by
the First
Respondent has ever been concluded between the First Respondent and
Second Respondent.
[21]
In the Applicants’founding affidavit, referring to an occasion
on 12 August 2010 when Ms. Mthethwa attempted to arrange
a visit to
the farm by a prospective tenant, she was informed by Ms De Jager
that a lease agreement was already in place.
[22]
At Ms Methetwa’s request Ms De Jager faxed a copy of Annexure
SN 14 (record p. 143) to her.
[23]
As appears from this document (in addition to what I have already
referred to) -
(a)
it purports to be a lease agreement concerning all the properties to
have been concluded between Leona Archery, in her capacity
as
Provincial Chief Director in the Department of Rural Development and
Land Reform allegedly duly authorized as the Lessor, and
Domar
Boerdery Beiange (Proprietary) Limited, represented by Dirk Wouter
Hurter and Douw Anton Hurter alleged duly authorized as
the Lessee;
(b)
it seems to be signed as lessee by only one of the persons
representing the lessee and witnessed by Ms. De Jager;
(a)
no date or signature appears at the space provided for at the end of
the document for the lessor to sign, but underneath the
signature of
Ms De Jager appears a signature which is admittedly the signature of
Mr. Khoza; (whose signature is not witnessed);
(b)
the initials “MM" (admittedly the initials of Mr. Khoza)
appear at the end of each page and at a number of places
where
clauses were either deleted or amended.
[19]
I need to point out at this stage that, according to the Applicants
(and not disputed by the First Respondent) that the application
only
concerns the one property since it was only this property that
eventually became the property of the Inqwenyama Simhulu Trust.
In
respect of Portions 45 and 61 the trustees of those trusts negotiated
a separate lease agreement with the Hurter brothers. According
to the
First Respondent the agreement was in respect of Portions 45 and 61
terminated on 23 August 2011 when a long-term lease
agreement
(Annexure L) was concluded with the Mjejane Trust.
[20]
In denying the existence of a lease agreement the Applicants rely on
supporting and confirmatory affidavits deposed to by -
(a)
Mr Sam Nkosi, Provincial Chief Director of the Department of Rural
Development and Land Reform (Annexure SN 11, record p. 137);
(b)
Mr. Lucas Mufumadi, Director of Operations of the Department of Rural
Development and Land Reform (Annexure SN 12, record p.
139);
(c)
Ms Thulile Mthethwa, Head of the Legal Unit of the Department of
Rural Development and Land Reform (Annexure SN 13, record p.
141);
and
(d)
Mr Mandla Mishack Khoza, who is employed in the Department of Rural
Development and Land Reform as Project Coordinator (record
p. 415).
[26]
In particular, responding to the allegations in the First
Respondent’s answering affidavits dealing with Ms De Jager’s
allegations as to what occurred on the day she met Mr Khoza, the
Applicants filed an additional affidavit by Mr. Khoza annexed
to
their replying affidavit in which Mr. Khoza states -
(a)
that in 2009 (which could have been on 12 August 2009) he spoke to a
lady attorney (who could have been Ms De Jager) accompanied
by two
European men (who he assumed could have been the Hurter brothers),
who represented the prospective tenant of the Property
and who
arrived at their offices;
(b)
that the lady wanted to speak to the Acting Chief Director to discuss
certain clauses in a document titled “/.ease Agreement’
which was apparently in the process of being negotiated, but he was
not available as they arrived without an appointment;
(c)
that Mr De Kock with whom they had previously spoken was also not
available; (c) that, although that matter was not his responsibility,
he offered his help to hear
what
their problem was;
(d)
that the lady then indicated that there were certain clauses in the
Standard Lease Agreement “which required some tweaking”;
(e)
that he asked her to indicate which clauses were not in order,
whereupon, she indicated that clause 4.3 is wrong which she amended
in manuscript and then delated and also changed the name of the
lessee to reflect a totally different entity in clause 18;
(f)
that she then asked him to witness the signature of the lessee which
he did by signing below the word “ Witness"
where she had
already signed as a witness, and also to initial all the amendments
or additions done in manuscript which he also
did;
(g)
that she then said she would first go back to her office to finalize
the document whereafter she would arrange for signature
by the Acting
Chief Director;
(h)
that she and the two gentlemen then left with the original as signed
and witnessed in her possession;
(i)
that some days later he contacted her as he had not heard from her
and requested a copy of the draft lease agreement which was
then
faxed to him.
It
is common cause that Mr. Khoza was not authorized to sign lease
agreement on behalf of the Government of the Republic of South
Africa)
[27]
As is set out in the Applicants’ founding affidavit, and
confirmed by Ms.
Mthethwa,
it is her version -
(a)
that after the transfer of the Property to the Second Respondent, the
Third Respondent wished to start a process of taking control
of
farming activities for the ultimate benefit of the beneficiaries by,
as first step, finding a tenant or partner to take occupation
of
portions of the Property as the First Respondent progressed with
harvesting;
(b)
that for this purpose she contacted the First Respondent’s
attorney on 12 August
2010
to arrange a visit to the farm by a prospective tenant, but that Ms.
De Jager expressed her surprise at this request claiming
that a lease
agreement was already in place;
(c)
that at her request for a copy of the lease agreement Ms De Jager on
the same day faxed a copy of the alleged lease agreement
(Annexure SN
14) to Ms Mthethwa which concerns not only the Property (which is the
only property which eventually became the property
of the Ingwenyama
Simhulu Trust), but also all the other properties which were owned by
the entities controlled by the Hurter brothers,
but was only signed
by the First Respondent;
(d)
that on 13 August 2010 in response to a letter received from Ms de
Jager Ms Mthethwa addressed a letter to Ms. De Jager recording
that
no lease agreement was concluded between the First Respondent and the
Provincial Land Reform Office and that the purported
lease agreement
was only signed by the First Respondent;
(e)
that Ms De Jager on 16 August 2010 responded by a letter addressed to
Ms. Mthethwa averring that the lease agreement was valid
and binding
and that they were consulting with senior counsel to apply for an
urgent order interdicting the Commission from entering
into a new
lease agreement;
(f)
that numerous communications were exchanged between the parties
during the period 16 August 2010 to 3 May 2011 in order to
resolve
the dispute, but to no avail.
[28]
On 10 May 2012 the First Respondent launched an urgent application
under Case No. 45754/2012 seeking an interdict against certain
individuals who staged an unlawful occupation of the Property in
which application the First Respondent relied on the purported
lease
agreement.
[29]
In the founding affidavit deposed to by the one Hurter brother, Mr.
Douw A Hurter, the purported lease agreement was annexed
which is
also annexed to the founding affidavit of the Applicants as Annexure
SN 28, record p. 187).
[30]
It is of particular significance to note that at the end of that
agreement where Mr. Khoza’s signature appears, the word
“lessor1’ had been inserted in manuscript.
[31]
Although reference was made in the founding affidavit to this
insertion, the First Respondent offered no explanation as to
how, why
and by whom that word had been inserted in the agreement.
Consideration
of the defences raised by the First Respondent
[32]
The Applicants are the trustees of a Trust which was established for
the benefit of a community, the Hhoyi community, for the
purpose of
acquiring, holding and managing property, which includes land that
was the subject of a land claim of which the Property
forms a part.
[33]
The land claim was settled in favour of the community and the
Property was, together with two other farms, referred to as Portions
45 and 61 of the Farm Tenbosch, purchased by the Government of the
Republic of South Africa (Second Respondent) from the owners
Hentiq
2617 (Pty) Ltd and Martiens Landgoed (Pty) Ltd , of which the two
Hurter brothers were the sole directors, for an all inclusive
price
of R71 500 000.
[34]
The Property, having initially been transferred to the Second
Respondent, was, together with the two other properties, transferred
to the Trust on 21 November 2011, being a date on which the Property
was occupied by the First Respondent, being a company other
than any
of the companies from which the Property was purchased and
of
which the two Hurter brothers were also the sole directors who seem
to have at all times been in occupation of the Property,
apparently
like the other properties.
[35]
On transfer having been effected to the Trust on 21 November 2011,
the Applicants sought occupation of the Property, but the
First
Respondent (who was, as I have already indicated, not the seller of
the Property), claiming the existence of the lease agreement
in
question, refused to vacate the Property hence this application for
the eviction of the First Respondent.
[36]
As is apparent from the facts as they appear from the papers and
elaborated on in argument at the hearing of this application,
the
question on which I am actually called upon to pronounce is the
question -
(a)
whether a valid and enforceable lease agreement was concluded between
the First Respondent (Domar Boerdery Belange (Edms) (Bpk))
and the
Second Respondent (the Government of the Republic of South Africa);
or
(b)
if not, whether, regard being had to the history of the events
preceding the alleged conclusion of the lease agreement, estoppel
can
be raised as defence to the contention by the Applicants that the
lease agreement is invalid and that no lease was concluded
by reason
of the fact that an unauthorized signature was appended thereto.
[37]
It is correct, as submitted by Mr J D Maritz SC, who appeared
together with Mr. Roelofse on behalf of the Applicants, that
if it is
held that no lease agreement was concluded, as is contended by the
Applicants, the question of estoppel can not arise
except, perhaps,
if the disputes of fact are held in favour of the First Respondent.
[38]
I have for various reasons no doubt that no valid agreement was
concluded.
[39]
It cannot (and is not) disputed that Mr Khoza, whose identity was,
according to the First Respondent’s version, later
established
not authorized to sign lease agreements on behalf of the Second
Respondent.
[40]
Furthermore, on the face of the lease agreement Mr. Khoza’s
signature (or the signature of Mr. Nkosi who was admittedly
authorized to sign such lease agreements) was not appended to the
alleged agreement at the space provided for in the document for
the
signature of the lessor and no date was inserted in the space so
provided. As far as Mr. Khoza’s signature is concerned,
it is
explicitly denied by him that he signed it as lessor (which is not
denied by the First Respondent and which has a clear ring
of truth,
on the one hand, as the whole matter was not his responsibility and,
on the other hand, that he was admittedly not authorized
to sign
agreements of this nature). The First Respondent’s belief that
the agreement was “properly” signed is,
although I have
reason to doubt to the truth of the belief or to see it as nothing
more than an opportunistic defence), is in any
event in my view
irrelevant. Ms De Jager and, on her advice, the First Respondent
could not have believed that the lease agreement
was signed by the
lessor. One is inclined, in the absence of a proper and acceptable
explanation, to think that the word “lessor”
was later
inserted next to the signature of Mr. Khoza to eliminate any doubt as
to whether or not the lease agreement was signed
by Mr. Khoza on
behalf of the lessor'. This agreement (which seems in that regard to
be nothing but a forged document) was annexed
to papers on 10 May
2012 at a time the First Respondent was well aware of the dispute as
to whether or not the lease agreement
was a valid and enforceable one
(see: paragraph [27] above).
[41]
There are various other factors which cast serious doubts on the
First Respondent’s contentions that they had reason
to believe
that the alleged lease agreement was “properly signed" in
so far as it may be relevant.
[42]
Firstly, there is the allegation that the Second Respondent offered,
because of the reduction of the initial agreed purchase
price, to
lease the properties, including the Property, to the sellers, being
Hentiq 2617 (Pty) Ltd and Martiens Landgoed (Pty)
Ltd, and not the
First Respondent. If that was an offer, as is contended by the First
Respondent, it does not appear with any clarity
and certainty why the
Second Respondent would have concluded a lease agreement with the
First Respondent which was not a seller.
[43]
Secondly, I cannot understand why Ms De Jager, who must have noticed
that the alleged agreement was not signed at the space
provided for
the lessor and who must have realized that there is doubt as to
whether or not the agreement was duly signed on behalf
of the Second
Respondent. I have been referred to a decision, (Chisnall and
Chisnall v Sturgeon and Sturgeon
1993 (2) SA 642
(W)) relating to
agreements concluded in terms of the Alienation of Land Act, 1981
(Act 68 of 1981), in
which
it appeared that the parties signed the relevant agreement at the
wrong places designated in the relevant agreements. In my
view those
decisions cannot find any application in this matter since no
allegations are made that the agreement was signed by
the authorized
person or was signed at the wrong place.
[41]
Thirdly, there is the fact (which was not debated fully before me)
that the alleged agreement purports to be concluded by Ms
Leona
Archery as the duly authorized representative of the Government of
the Republic of South Africa (who admittedly did not sign
the
agreement) and by only one of the authorized representatives the
First Respondent. If the agreement was in a final stage it
is
unexplained and a mystery why the name of Ms Archery was not replaced
for name of Mr Nkosi who was to the full knowledge of
Ms De Jager the
relevant authorized official.
[42]
Fourthly, there is the fact that the word "lessor was falsely,
if not fraudulently, inserted next to the signature of
Mr Khoza with
the obvious intention to convey to the Court hearing the urgent
application to which I have already referred to,
that the agreement
was, notwithstanding the absence of a signature at the space provided
for the lessor, duly signed on behalf
of the Second Respondent at a
stage when it was well- known to the First Respondent that it was
disputed that the lease agreement
was indeed signed on behalf of the
Second Respondent, without disclosing it in that application that the
conclusion of the agreement
was in dispute.
[43]
Fifthly, there is the fact that, in so far as the First Respondent
relies on an offer made to the sellers of the properties,
being
Hentiq 2617 (Pty) Ltd and Martiens Landgoed (Pty) Ltd that the
Properties be leased back to the sellers (and not the First
Respondent) rendering the underlying reason for the conclusion of the
lease agreement not only unexplained, but also irrelevant
as a reason
for the conclusion of the agreement.
[47]
I am accordingly satisfied that no lease agreement was duly concluded
between the Second Respondent and the First Respondent.
[48]
This brings me to the estoppel issue raised by the First Respondent.
[49]
As I have already indicated, I agree with Mr. Maritz SC that if no
valid lease agreement has been concluded the issue of estoppel
cannot
arise.
[50]
It may be relevant in so far as the First Respondent relies on the
factual disputes between the parties as to what occurred
on 12 August
2009 when Ms De Jager (and possibly also the two Hurter brothers)
visited the offices of the Department and met Mr.
Khoza.
[51]
On the one hand, it would seem to be the First Respondent’s
case, as supported by Ms De Jager, that Mr Khoza, according
to Ms. De
Jager’s recollection, either “left her presence and
returned with the copy of the signed lease agreement
or... she left
the original of the lease agreement with Khoza and, after having left
the offices of the Third Respondent (she)
enquired telephonicallyfrom
Khoza whether the lease agreement was signed and that Khoza informed
(her) that it was properly signed’
and that it was
thereafter
faxed to her.
[52]
On the other hand, according to Mr. Khoza he, not being responsible
for this matter, but having offered his assistance, was
requested by
Ms. De Jager to initial amendments she effected to the agreement she
produced and to sign as a witness at the end
of the agreement where
she likewise as signed as a witness.
[53]
These respective versions do not in my view constitute a real and
genuine dispute of facts.
[54]
It seems from the opposing affidavit that Ms De Jager was not clear
as to what actually occurred on the day in question in
the sense that
Mr Khoza either took the agreement to a place elsewhere in the
building and returned with the agreement as it appears
from Annexure
SN 14 and handed it to her or that she left it with him whereafter he
informed her that it was properly signed and
faxed to her at some
later stage.
[55]
This version is for various reasons to be improbable.
[56]
Firstly, it appears, regard being had to the fact that Mr. Khoza is
admittedly not authorized to sign lease agreements on behalf
of the
Government of the Republic of South Africa, to be highly improbable,
if not impossible, that he could have said that to
Ms De Jager that
the agreement was properly signed.
[57]
Secondly, the version of Ms De Jagerthat Mr. Khoza on her one version
merely handed the document back to her after having returned
to his
office and on her second version that he later informed her that the
agreement had properly be signed, are contradictory.
[58]
Thirdly. Ms De Jager who seems to be a well trained notary and
conveyancer, could have and in my view should have -
(a)
if the agreement was handed back to her by Mr Khoza after he went
into the building; or
(b)
if the agreement was later faxed to her, noticed that it was not
signed at the space provided for the signature of the lessor
and,
knowing that Mr. Nkosi was the authorized person to sign, enquired
from Mr. Khoza as to who indeed signed.
[59]
In the face of the explicit evidence of Mr. Khoza that she merely
asked him to sign as a witness which on the probabilities
seems to me
to be the truth, I am satisfied that we are not here concerned with a
real and genuine dispute of fact.
[60]
This dispute accordingly does not detract from my finding that no
valid and enforceable agreement had been concluded.
[601
In any event the defence of estoppel can not be raised in the
circumstances of this matter.
[62]
It is trite that generally estoppel cannot be raised -
(a)
to estop one person from denying the truth of a representation
(Alfred Me Alpine & Sons (Pty) Ltd v Transvaal Provincial
Administration 1977(4) SA 310 (T) at 335A),
(b)
to validate an otherwise invalid act (Merriman v Williams
1880 Foord
135
; Vi/estern Credit Ltd v Mike Coppings’s Truck Centre (Pty)
Ltd 1966(2) SA 387(7)).
[63]
In this case the negotiations on which the First Respondent relies
were clearly between officials of the Government of the
Republic of
South Africa and the legal representative at the time acting on
behalf of the then sellers, in circumstances where
they were
obviously not acting as agents of the Applicants and where the
Applicants were not consulted and in any event did not
participate in
such negotiations. Therefore, if anyone did make any representation
about the signature or authority of Mr Khoza,
it was not done by the
Applicants or beneficiaries of the Trust so that the Applicants can
be held to any possible misrepresentations
by government officials.
In any event it does not appear to be the First Respondent’s
case that any misrepresentation to
that effect was made to it.
[64]
In terms of section 5 of the Alienation of State Land Act, 1961 (Act
48 of 1961), any lease of State land must be signed by
an officer
expressly assigned to do that failing which no valid lease agreement
can be concluded. In this case it is, as I have
already indicated,
clear that, on the assumption that Mr Khoza signed the agreement as
lessor, Mr Khoza was not authorized to sign
agreement of this nature.
The First Respondent can accordingly not rely on estoppel to render
the agreement valid which is obviously
otherwise invalid.
[65]
I am accordingly unpersuaded the the First Respondent’s defence
of estoppel can succeed.
[66]
In my view the First Respondent failed to establish any defence
justifying its occupation of the Property.
[67]The
Applicants’ claim is a straightforward
rei vindicatio
based
on their ownership of the Property and the First Respondent failed to
put up a lawful defence.
[68]
In the premises the following order is made:-
1.
THAT the First Respondent, together with all persons occupying
through it the property known as Portion 53 of the Farm Tenbosch
162
JU ('the Property’), be ordered to vacate the property
forthwith or on such later date as the Applicants may in their
sole
discretion determine.
2.
THAT, in the event of the First Respondent and any of the persons
referred to in paragraph 1 of this order failing to vacate
the
Property as directed in paragraph 1 of this order, the Sheriff of
this Court, Barberton or any other Sheriff with jurisdiction
be
authorized and enjoined to evict, if necessary, with the assistance
of members of the South African Police Service, the First
Respondent,
together with the persons referred to in paragraph 1 of this order.
3.
THAT the First Respondent be ordered to pay the Applicants’
costs of this application, including the costs attendant upon
the
employment of two counsel.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE APPLICANTS:ADV J D MARITZ SC
ADV
J H ROELOFSE
On
the instructions of:SILINDA - MOKOENA & ASSOCIATES INC
Building
No. 2 Block 2 Monument Office Park 79
Steenbok
Avenue Monument Park
PRETORIA
Ref:
Mr. KT Mokoena/PK10002/Phindi
Tel
: 012 346 5440
ON
BEHALF OF THE FIRST RESPONDENT: ADV M M RIP SC
ADV
CM RIP
On
the instructions of: KRUGER NAGEL & DE JAGER INC
c/o
BARNARD & PATEL INC 17 Ivey Street Clydesdale
PRETORIA
Ref: JE Nagel/dV/D27299 012 343 5042
DATE
OF HEARING: 31 January 2013
JUDGMENT
DELIVERED ON:12 February 2013