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[2013] ZANCHC 40
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Keyser and Another v Keyser (787/2013) [2013] ZANCHC 40 (12 November 2013)
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IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape High
Court, Kimberley)
Case Nr: 787/2013
Case Heard:
08/11/2013
Date delivered: 12
/11/2013
In
the matter between:
JACOBUS KEYSER
......................................................................
FIRST
APPLICANT
MARIA
MAGDALENA KEYSER
...............................................
SECOND
APPLICANT
and
WILLEM CHRISTOFFEL
KEYSER
........................................................
RESPONDENT
Coram: Olivier J
REASONS
Olivier J:
[1] What follows are
the reasons for the following orders granted by me at the hearing of
this matter on 8 November 2013:
[1.1] The applications
to strike out and for leave to file a further affidavit are
dismissed.
[1.2] The applicants’
application to amend paragraph 1 on the notice of motion is granted.
[1.3] The respondent is
ordered to remove all his livestock and any moveable property kept by
him on
Portion 8 of the farm
Mier 585
Siyanda District
Municipality
Gordonia Registration
Division
Northern Cape Province
Title Deed: T214/2013
Size 2591, 6566
hectares
within 30 days of the
date of this order, failing which the sheriff is ordered and
authorised to do so.
[1.4] The respondent is
ordered to pay the costs of this application, including the costs of
the applications to strike out and
for leave to file a further
affidavit
On 24 May 2013 the
applicants lodged an application for an order that the respondent
remove his livestock from a farm in the Gordonia
area, and therefore
within the area of jurisdiction of this Court, within 10 days of the
date of the order and that, should the
respondent fail to comply
with such order, the sheriff be authorised and ordered to not only
remove the livestock, but also to
sell it on auction on such terms
and conditions and at such prices as deemed fit by the sheriff.
The case made out by
the applicants in their founding affidavit was that they had
originally leased the farm and that they later
became the registered
owners of the farm. Approximately 5 years ago the first applicant
agreed to let the respondent, his brother,
keep livestock on the
farm. No compensation was payable by the respondent. The agreement
was, however, that the indulgence could
at any time be terminated.
In terms of a lease
agreement which the applicants concluded with Mr J G Human on 14
September 2011 Human leased the farm for
a period of 8 years from 1
January 2012. A copy of the lease agreement was annexed to the
founding affidavit of the first applicant.
After the conclusion
of the lease agreement the first applicant requested the respondent
to remove his sheep from the farm, so
that full and undisturbed
possession of the farm could be given to Human. Numerous requests
were made by the first applicant,
by text messages and to the
respondent personally. The respondent failed to remove his
livestock.
The first applicant
then instructed an attorney to address a letter in this regard to
the respondent. The letter was served on
the respondent by the
sheriff on 26 March 2013. Its heading reads as follows:
“
PLAAS
BLINKKLIPPAN – J + M M KEYSER vs USELF”
In the letter the
following was recorded:
“
Dit
is ons instruksies dat hy u van weiding vir ‘n paar van u vee
voorsien het. Voormelde het gebeur gedurende ‘n tydperk
wat u
broer nog die grond by die Mier Munisipaliteit gehuur het. U broer en
sy gade het intussen op 8 Februarie 2013 eienaars van
die grond
geword en is dit hulle begeerte om die grond te verhuur.
Ten einde die grond
beskikbaar te stel aan ‘n huurder, benodig ons kliënt
vakante besit daarvan. Volgens ons kliënt
het hy u reeds 4 kere
versoek om u diere van die grond te verwyder, sonder enige sukses.
Dit laat ons kliënt geen ander alternatief
as om regstappe te
oorweeg nie.”
In the letter the
respondent was requested to remove his livestock and any other
moveable property of his by 30 April 2013. He
has to date failed to
do so.
In a confirmatory
affidavit annexed to the first applicant’s founding affidavit
Human confirmed that the respondent was
interfering with his
possession of the farm by not allowing his livestock access to
water.
The first applicant
also annexed to his founding affidavit a so-called SearchWorks
Report in substantiation of his averment that
he and the second
applicant were the registered owners of the farm on which the
respondent kept his livestock. The first applicant
referred to this
document as an extract from the records of the Registrar of Deeds.
In the notice of
motion and in the first applicant’s founding affidavit the
property concerned was described as
“
Gedeelte
7 van die Plaas 585
Geleë in die
Siyanda Distriksmunisipaliteit
Afdeling Gordonia
Provinsie Noord-Kaap
Groot 2591,6566
hektaar
Gehou kragtens
transportakte T214/2013”
According to the
report the applicants were indeed the owners of a portion of farm
number 585, called Mier, in the Siyanda District
Municipality,
Gordonia Division, Northern Cape, its size indeed being 2591,6566
hectares and indeed held by the applicants in
terms of title deed
T214/2013. The only difference was that according to the report the
portion concerned was Portion 8, and
not Portion 7.
In the introductory
section of the lease agreement it was recorded that the applicants
were the owners of “
die plaas Mier 585 Gedeelte 8”
.
Although it appears that Portion 8 had in fact not been transferred
into the names of the applicants at that stage, this part
of the
lease agreement would have made it clear to any reader thereof that
it was Portion 8, and not Portion 7, which had been
leased to Human.
As already mentioned, a copy of this agreement was annexed to the
founding affidavit.
In his answering
affidavit the respondent did not deny:
[14.1] that the
applicants were the owners of a portion of the farm Mier number 585;
[14.2] that the size of
the portion owned by them was as described in the notice of motion,
founding affidavit and in the report;
[14.3] that their
portion of the farm was held by the applicants under title deed
number T214/2013;
[14.4] that the
respondent kept his livestock on a farm with this size, within the
area described and held by the applicants under
the said title deed;
[14.5] that he had
prevented Human’s livestock from having access to water; or
[14.6] that his right
to keep his livestock on a farm belonging to the applicants had been
terminated.
The respondent also
did not deny what was reflected in the report and in the lease
agreement concerning the property which was
owned by the applicants,
namely Portion 8 (and not portion number 7) of the farm Mier 585.
Instead, and as will
become clear in due course, he opportunistically latched onto the
fact that the notice of motion and the
first applicant’s
founding affidavit described the property concerned, in other words
the property owned by the applicants
and on which the respondent was
according to them keeping his livestock, as Portion 7. The only
“
defence
” raised by the respondent was a denial
that the applicants owned, and that he kept his livestock on, a
property as described
in the notice of motion and in the first
applicant’s founding affidavit itself. He submitted that as
consequence of this,
and because they did not own Portion 7, the
applicants had failed to show that they had
locus standi
and
a cause of action to have the respondent evicted from the property
described in the notice of motion and in the founding
affidavit.
The
existence of a lease agreement with Human “
in
regard to the immovable property
”
,
in other words the portion of the farm Mier referred to in the
notice of motion and in the founding affidavit, was denied by
the
respondent, on the basis that the contents of the copy of the lease
agreement did not support the allegation that the applicants
were
the owners of Portion 7
1
.
The respondent’s
“
defence
” was therefore solely based on a denial
of the allegation that it was Portion 7 of the farm Mier 585 that
was owned by
the applicants and on which the respondent was keeping
his sheep. The contents of the report were, as already mentioned,
not
denied and it was not denied that the applicants were the owners
of Portion 8 of the farm. It was also not denied that the respondent
kept his livestock on a farm belonging to the applicants and leased
by Human.
Not surprisingly the
applicants replied by simply stating that the reference to Portion 7
in the notice of motion and in the first
applicant’s founding
affidavit was a
bona fide
typing error and that the
respondent knew perfectly well that it was Portion 8 on which he
kept his livestock, and the applicants
then gave notice of the
intended amendment of their notice of motion to reflect the property
concerned as Portion 8 of the farm,
and not Portion 7.
No objection to the
intended amendment was filed. It was also not objected to at the
hearing of the application.
Instead counsel for
the respondent, Ms Hassim SC, chose to argue the so-called defence
raised in the answering affidavit. She
argued that the reference to
Portion 8 in the replying affidavit amounted to the introduction of
a new cause of action and that
on this basis, and on the basis that
references in the replying affidavit to Portion 8 in her submission
introduced new matter,
the parts of the replying affidavit which
referred to Portion 8 should be struck out.
In
the alternative she argued that, should the contents of the replying
affidavit not be struck out, the respondent should be
granted leave
and the opportunity to file a further affidavit. She argued that the
respondent would in any event have needed
the Court’s leave to
file a further affidavit in the event that that the application to
strike out failed. She did not,
however, tender a further affidavit,
as is the practice when leave is sought to file an additional
affidavit
2
.
Instead Ms Hassim
chose to follow a course which would, should leave to file a further
affidavit have been granted, inevitably
have resulted in a
postponement of the matter for the preparation and filing of such
further affidavit. If the respondent and
his livestock were indeed
occupying the applicants’ farm, such a delay would have
further prejudiced them in their obligation
to afford Human full and
undisturbed possession of the farm.
That Ms Hassim
contemplated the possibility that the application to strike out
could fail, was borne out by the fact that in her
heads of argument
she already intimated that in such an event leave would be sought to
file a further affidavit.
It was never explained
what it was that needed to be dealt with in a further affidavit. Ms
Hassim submitted that there was no
need for this Court to know what
the respondent wanted to say in a further affidavit. I disagree. How
could a Court be expected
to consider the need for a further
affidavit without at least an outline of what it is to address?
In this case the Court
was kept completely in the dark, because it was never disclosed what
defence the respondent would raise
in respect of Portion 8. That the
respondent may have a valid defence in respect of any property on
which he is keeping his livestock,
was not so much as suggested in
the answering affidavit, nor in Ms Hassim’s heads of argument.
If,
for example, the respondent’s defence would have amounted to
an admission that he was keeping his livestock on a farm
belonging
to the applicants, but to deny the termination of his right of
occupation, or to raise some other right of occupation,
it would
have been easy to have, right from the outset, prepared a further
affidavit to this effect timeously, and to have had
it available for
the purpose of an application for leave to file it. The respondent’s
legal representatives would surely
have noticed the references to
Portion 8 in the annexures to the founding affidavit and not
obtaining the respondents instructions
in respect of Portion 8, or
in fact in respect of any other property of the applicants which the
respondent may have been using
for grazing, would in my view have
amounted to “
culpable
remissness
”
on
their part
3
.
Instead the respondent’s attorney waited until the day before
the hearing to file an application for leave
4
to
file a further affidavit.
That
the applicants’ case would always have been that the
respondent was keeping his animals on a farm belonging to them
and
that he no longer had a right to do so, would at all times have been
very clear to the respondent, at the very least when
the letter was
served on him. In fact, on the applicants’ undisputed evidence
of repeated requests
5
to
the respondent to remove his sheep, the respondent would before the
letter was served already have known that the applicants’
case
was that he was keeping livestock on their farm. It would have been
within the respondent’s knowledge whether he was
indeed
keeping his livestock on a property belonging to the applicants, and
whether he had in fact indeed prevented Human’s
livestock, or
anyone else’s livestock, from reaching water. It would have
been a simple matter to at the very least have
dealt with this in a
further affidavit on a provisional basis, to cater for the
possibility that the need could arise to apply
for leave to file
such a further affidavit.
While maintaining that
there was no need to have such a further affidavit available when
leave was sought to file it, in order
to give the Court an
indication of the need for such an affidavit and to have it ready
for filing should leave be granted, Ms
Hassim submitted that in any
event the respondent would have had insufficient time to prepare
such an affidavit, due to the fact
that his attorney and counsel are
respectively from Pretoria and Johannesburg.
The replying papers
and the notice of amendment were faxed to the respondent’s
attorney on 29 October 2013 and this matter
was heard on 8 November
2013. I cannot accept that in this day and age it would not have
been possible to prepare a further affidavit
timeously. I also
cannot accept that the respondent’s legal representatives
would not already when the answering affidavit
was prepared have
discussed any right which the respondent may have had to keep his
livestock on Portion 8 of the farm Mier 585.
In fact, Ms Hassim’s
reference to the property being the subject of discriminatory laws,
to which I will revert in due
course, suggested that the
respondent’s use of Portion 8 had indeed been canvassed in
consultation and that the respondent
and his legal team had known
perfectly well what property was involved.
In fact, it would have
been just as simple to deal with this in the answering affidavit
already, on the basis of denying occupation
of Portion 7 and
asserting a right of possession and occupation in respect of Portion
8, should respondent indeed have had such
a right.
Ms Hassim, as already
mentioned, made the submission that the farm was the subject of
discriminatory laws. When I attempted to
establish whether this was
in some way going to be the basis of a defence to be set out in such
a further affidavit, Ms Hassim
replied that she had merely made the
submission in reaction to the accusation of Mr Haddad, the attorney
who appeared for the
applicants, that the respondent’s
approach amounted to delaying tactics. She did not want to commit to
any defence on this
basis and she did not provide any further
details in this regard. The vague reference to discriminatory laws
provided no indication
of how the respondent may have intended to
rely on that as a defence.
It
was also only in argument that Ms Hassim submitted that the
Extension of Security of Tenure Act
6
would
apply to the property concerned and that this Court therefore did
not have the jurisdiction to entertain the application.
She relied
on the presumption created in section 2 (2) of the Act and argued
that, because on the applicants’ own version
the respondent
would at some stage have had their consent to use the land, as
envisaged in section 3 (1) of the Act, an eviction
order could not
be granted without certain procedural requirements having been
satisfied.
Section
3 (1) of that Act clearly only applies to the termination of an
occupier’s use of land, and the word “
occupier
”
is
defined
7
as
“
a
person residing …
”
on
the land in question, which is not the case on these papers.
It has clearly all
along been the strategy not to deal with the merits, but instead
simply to rely on the technical and dilatory
“
defence
”
that was solely based on what was very clearly a
bona fide
mistake in the description of the property in the notice of motion
and in the founding affidavit.
I
must say that I find it extremely disappointing, to say the least,
that the respondent had according to him been advised to
adopt this
strategy, not only by his attorney and junior counsel, but also by
senior counsel. It has repeatedly been held that
civil litigation is
not a game
8
.
The strategy adopted
by the respondent, advised and clearly supported by his legal team,
invited me to disregard the clear references
to Portion 8 in the
report and in the lease contract, and to strike out the explanation
in the replying affidavit that a
bona fide
mistake had led to
the obvious mistaken references to Portion 7 in the notice of motion
and in the founding affidavit, rather
than to Portion 8.
This while the
contents of the report and of the lease agreement, which were
annexed and referred to in the founding affidavit,
would already and
in themselves have made it clear that the references to Portion 7 in
the notice of motion and in the founding
affidavit itself were
mistakes, and in circumstances where the respondent would have known
what the correct position was and
could easily have dealt with it in
his answering affidavit.
Ms Hassim referred to
the report as a document with no status. There was no application
for the striking out of this document.
It is commonly annexed to
affidavits to substantiate allegations of ownership. The applicants
had no reason to believe that their
ownership of the property on
which the first applicant’s brother had for 5 years been
keeping his sheep on the basis of
an indulgence granted by the first
applicant, would be disputed. In any event, the respondent as a lay
person would not himself
have ignored the contents of the report on
the basis of it having no legal status. On his own version he had
read the papers
and he would have known whether the portion referred
to in the report was owned by the applicants and whether his
livestock were
on that portion.
Even a lay person
reading the founding papers, which would obviously by reference have
included the annexures thereto, would immediately
have noticed that
the description of the property concerned in the report and in the
lease agreement differed from that in the
notice of motion and in
the founding affidavit itself, and would have been forewarned that a
mistake may have been made and that
the applicants may have intended
to refer to Portion 8.
If such a lay person
furthermore knew full well that he or she was in possession of
Portion 8 it would have been simple to deal
with his or her right to
occupy that portion.
There was no
suggestion at all that the respondent had livestock on more than one
farm, let alone on more than one farm belonging
to the applicants.
I therefore had no
hesitation in rejecting the respondent’s allegation in his
answering affidavit that, when he read the
papers, he “
was
confused as to what my brother was seeking and why he was seeking it
against me
”. At the very least the reference to the farm
Blinkklippan in the letter of 26 March 2013 would in all probability
have
made it very clear to the respondent which farm was concerned.
He was, however, advised to adopt the obstructive approach of simply
denying the allegations insofar as they pertained to Portion 7 and
of not dealing with any right which he may have had to occupy
Portion 8 or other any property of the applicants.
It was submitted on
his behalf that nothing would prevent the applicants from
instituting fresh proceedings should the application
be dismissed on
the basis of the mistaken references to Portion 7. With the
exception that the number of the particular portion
would in the
notice of motion and in the founding affidavit be substituted with
the number 8, such a new application would be
identical to this
application. This would have made no sense and it would obviously
have delayed the finalisation of the matter.
It would, rather
significantly, also have helped the respondent to further avoid and
delay dealing with the averment that his
use of the land concerned
had been terminated.
The same obstructive
approach was then adopted by counsel in the provisional application
for leave to file a further affidavit,
by not having at least a
draft of such an affidavit available for the purposes of the
application, by not being prepared to disclose
at all what needed to
be addressed in such a further affidavit and by adopting an approach
which would, instead, have assisted
the respondent in further
delaying the matter.
I
am in any event of the view that the replying affidavit did not
introduce “
something
unexpected
”
or
“
new
matter
”
9
.
It deals with the applicants’ ownership and the respondent’s
possession of Portion 8 of the farm Mier 585, a matter
clearly at
the very least already raised in the annexures to the founding
affidavit.
The respondent took a
calculated risk, and persisted in the same obstructive strategy
adopted in his answering affidavit, when
he decided not to have a
further affidavit ready when applying for leave to file such an
affidavit. He did not show
bona fides
and good cause for such
an affidavit to be allowed, because as already mentioned not so much
as a hint was given of what it was
that the respondent would deal
with in such an affidavit and that he could not have been expected
to deal with in his answering
affidavit.
This
Court had a discretion
10
whether
to allow a further affidavit or not and in my view it would have
been extremely unfair to the applicants, and it would
have reflected
negatively on our judicial system and our Courts, if I had in those
circumstances allowed a further delay in the
applicants’
attempts to give effect to the lease agreement with Human. It would
obviously also have prejudiced Human in
the exercise of his rights
as a lessee. No costs order could have remedied these consequences
of a postponement to allow the
filing of a further affidavit.
To summarise:
[49.1] The respondent
had the opportunity to deny the presence of livestock belonging to
him on any property belonging to the applicants
or to assert a right
which he may have had to keep his livestock on property of the
applicants. Despite the contradictory references
in the founding
papers and notice of motion to what portion of the farm Mier 585 was
involved, the respondent could and should
have dealt with the merits
and with the real issue, namely whether he was occupying any property
belonging to the applicants and,
if so, whether he had the right to
do so.
[49.2] There is no
basis for striking out any part of the replying affidavit
[49.3] No case was made
out that the respondents should under such circumstances be allowed
leave and a postponement to file a further
affidavit. To have granted
leave to file a further affidavit, especially in circumstances where
it would because of the strategy
adopted on behalf of the respondent
inevitably have resulted in a delay in the finalisation of this
matter, would have been unfair
to the applicants and not in the
interest of justice.
It was for these
reasons that I ordered the respondent to remove his livestock and
any other movable property of his from Portion
8 of the farm Mier
585.
I was, however,
inclined to grant the respondent more than the 10 day period
suggested in the notice of motion, despite the fact
that he had on
numerous occasions over a period of time been requested to do so.
According to the first applicant the respondent
had at times kept up
to 200 sheep on the farm. There was no information about whether the
respondent had alternative grazing
available and I was of the view
that it could in any event take some time to remove so many sheep.
I was also not
prepared to grant the order that, should the respondent fail to
comply with the order to remove the sheep, the
sheriff be authorised
to not only remove the sheep, but also to sell the sheep on the
basis set out in the notice of motion.
Should the need arise, and in
the event that the sheriff has to remove the livestock, any of the
parties could approach this
Court for such further relief as may be
required.
There was no reason
why costs should not follow the result. The respondent’s
dilatory and obstructive attitude may have
been cause for a punitive
costs order, but this was not argued or applied for.
______________________
C J OLIVIER
JUDGE
NORTHERN CAPE
DIVISION
For the Applicant: Mr V Haddad,
Elliott, Maris, Wilmans & Hay, KIMBERLEY
For the Respondent: Adv S K
Hassim, SC
Instructed by: Duncan &
Rothman, KIMBERLEY
1
As
already mentioned, it recorded that the applicants were the owners
of Portion 8 of the Farm Mier 585.
2
Herbstein
& Van Winsen – The Civil Practice of the High Courts of
South Africa
, 5
th
edition, vol 1, Cilliers
et
al
, p435;
Transvaal
Government v The Standarton Farmers’ Association
1906 TS 21
; Compare
Wilson-Yelverton
v Sharman t/a Wanga Investments and Another
1992
(1) SA 80
(T) at 85B-H
3
Compare
Transvaal Racing Club v Jockey Club of
South Africa
1958 (3) SA 599
(W) at
604C
4
Should
the application to strike out fail.
5
Before
the letter was served.
6
62
of 1997
7
In
section 1 of the Act.
8
Le
Grand (t/a Jeannes) v Carmelu (Pvt) Ltd (t/a Lynwood Fashions)
[1980] 3 All SA 280
(ZAR) at 282 – also
cited as
1980 (1) SA 240
(ZAR) at 242;
Take
& Safe Trading CC and Others v Standard Bank of SA Ltd
2004 (4) SA 1
(SCA) – also cited as
[2004]
1 All SA 597
(SCA) para [3]
9
Compare
Zarug v Parvathie, NO
1962
(3) SA 872
(D) at 873-874;
Wilson-Yelverton
v Sharman t/a Wanga Investments and Another, supra
10
Compare
Transvaal Racing Club v Jockey Club of
South Africa
, supra, at 603