About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2012
>>
[2012] ZAFSHC 123
|
|
Van Zyl NO and Others v Hoffmann NO and Others (3762/2010) [2012] ZAFSHC 123 (22 June 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3762/2010
In the matter between:-
ALLAN
AUBREY VAN ZYL N.O.
…......................................................
First
Plaintiff
DENISE
VAN ZYL N.O.
…................................................................
Second
Plaintiff
RENÉ
DEON DU PLESSIS N.O.
….....................................................
Third
Plaintiff
and
HENDRIKA
WILHELMINA HOFFMANN N.O.
…...........................
First
Defendant
ANNA
MARIA CATHARINA HOFFMANN N.O.
…..................
Second
Defendant
JOACHIM
WILHELM STOLL HOFFMANN N.O.
….....................
Third
Defendant
ERNST
DANIËL HEINRICH HOFFMANN N.O.
….....................
Fourth
Defendant
_______________________________________________________
HEARD ON:
8
& 9 MAY 2012
_______________________________________________________
JUDGMENT BY:
DAFFUE, J
_______________________________________________________
DELIVERED:
22 JUNE 2012
_______________________________________________________
INTRODUCTION
[1] The three plaintiffs
are trustees of the Orthodoc Trust with registration number TMP2760.
The four defendants are the trustees
of the Hoffland Trust with
registration number IT1684/1996. I shall refer to the parties as
plaintiff and defendant respectively.
Plaintiff is represented by
Adv. Wessels SC and defendant by Adv. Porteous.
[2] Plaintiff claims
damages from defendant the amount of R1 020 761.10, alternatively the
amount of R833 081.20 in respect of alleged
breach of contract. The
action is defended by defendant who filed two special pleas and
pleaded over in respect of the merits.
No replication was filed by
plaintiff.
ARGUMENTS IN
RESPECT OF SPECIAL PLEAS
[3] On the first day of
the hearing and after some time was spent to enable the parties to
prepare a document containing agreed
and/or common cause facts, I was
requested to rule that defendants’ two special pleas be
adjudicated first. I adhered to
the request. I was furthermore
informed that there was no agreement between the parties whether the
facts agreed upon could or
should be considered by me for purposes of
adjudication of the special pleas. The parties agreed not to lead any
evidence and I
was requested to adjudicate the special pleas based on
the pleadings as they stand. At the close of the first day and after
hearing
argument the matter was adjourned to the next day. Mr.
Porteous indicated prior to the adjournment that he was considering
an amendment
and therefore I did not prepare a judgment.
[4] When we resumed the
next day Mr. Porteous informed me that he had reconsidered the issue
and abandoned the two special pleas.
The only issue to be considered
was costs pertaining to this aspect of the case. He requested me to
reserve costs until the end
of the trial whilst Mr. Wessels argued
that I would not at a later stage be in any better position in order
to exercise my discretion
pertaining to costs and that I should grant
costs against defendant bearing in mind that much of the previous day
was to be regarded
as wasted. I wish to point out at this stage that
the first two hours of the first day was spent by the parties on
trying to reach
an agreement pertaining to which facts could be
agreed upon and that argument in respect of the special pleas started
just after
11h30 only. Mr. Porteous indicated that much of his
argument and the case law referred to will be helpful in my
adjudication of
the matter on the merits and that most of the day
could not be regarded as wasted. I reserved judgment in respect of
the costs
pertaining to the two special pleas for later adjudication
when the merits are eventually and finally adjudicated.
SEPARATION OF
ISSUES AND FURTHER DEVELOPMENTS
[5] The document
pertaining to the agreed and common cause facts prepared by the
parties was eventually handed in by agreement and
marked exhibit “A”.
As requested I ordered a separation of issues in accordance with Rule
33(4) to the effect that,
save for the quantum of plaintiffs’
claim, all other facts in dispute on the pleadings were to be
adjudicated upon. I also
ruled that although document bundles were
handed in by agreement by both parties, the documents contained
therein would not constitute
evidence unless the parties agree as
such pertaining to specific documents contained therein and save
those recorded and agreed
to in exhibit “A”.
[6] Mr. Wessels closed
plaintiff’s case without leading any evidence whereupon Mr.
Porteous applied for absolution from the
instance. It struck Mr.
Wessels that he might have made a mistake in closing his case without
leading evidence particularly pertaining
to causality and as
explained by him he initially thought that this would be dealt with
as an integral part of quantum and not
as part of the merits. He
intimated that he needed to re-open plaintiff’s case in order
to lead evidence pertaining to certain
issues, but after an
adjournment I was informed that the parties agreed that certain facts
be admitted in order to avoid leading
evidence in that regard.
[7] The following was
then recorded as an admission and on the basis that Mr. Wessels did
not proceed with an application to re-open
his case:
“
It is common
cause that building costs escalated during the period from August
2007 when the property was registered in the name
of the trustees of
the Orthodoc Trust until the time when action was instituted, being
28 July 2010.”
[8] Upon recording the
admission Mr. Wessels proceeded with his argument to which Mr.
Porteous replied. I shall deal with the arguments
in due course.
BACKGROUND WITH
REFERENCE TO THE PLEADINGS AND THE AGREED AND/OR COMMON CAUSE FACTS
[9] In October 2005
defendant applied for subdivision of Portion 1 of the Farm Morgenzon
339, district Bloemfontein in terms of
the provisions of section 20
of the Townships Ordinance, 9 of 1969. The application was
conditionally recommended by the Mangaung
Local Municipality and on
or about 16 November 2006 approved by the Free State Province subject
to certain conditions, including
those imposed by the municipality.
The one relevant condition imposed was that existing link roads
between the proposed development
and the A53 provincial road be
upgraded. Ednau Avenue, in particular, is one such road.
[10] On 5 October 2006
first plaintiff, not a trustee at the time, purportedly entered into
a Deed of Sale with defendant on behalf
of the trustees of the
Orthodoc trust in terms whereof one of the plots forming part of the
subdivided property, being Plot 26,
was purchased.
[11] On 29 August 2007
Plot 26 was transferred in the name of the trustees for the time
being of the Orthodoc Trust. The transfer
was duly authorised by all
the trustees of both trusts. Plaintiff settled the purchase price in
full.
[12] On 14 August 2007 a
further agreement was purportedly entered into between the parties in
terms whereof defendant agreed to
erect certain structures and to
instruct a surveyor to prepare sectional title plans to enable the
parties to arrange for the opening
of a sectional title register on
or before 31 December 2007. An amount of R7 000.00 was paid by
plaintiff to defendant in order
to comply with its contractual
obligations. First plaintiff signed the agreement, his only
authorisation being a resolution in
general terms dated 25 August
2005.
[13] Ednau Avenue has to
date hereof not been upgraded as contemplated and provided for in the
aforesaid conditions. It is alleged
by plaintiff that as a
consequence of the failure to upgrade Ednau Avenue plaintiff may not
legally occupy the property purchased
and/or that the municipality
could not, cannot or will not approve building plans to enable
plaintiff to erect a dwelling house
on the property. This is not only
denied by defendant in its plea, but the contrary appears from the
agreed facts. Plaintiff never
submitted building plans for approval,
but by May 2010 three dwelling houses had been completed on other
plots forming part of
the subdivided property and certificates of
completion had been issued by the municipality in respect thereof.
This is contrary
to the view of one Rautenbach of the municipality in
an e mail message to plaintiff’s attorneys dated 10 February
2010. A
certain Herbst took the municipality to Court at the end of
2010 when it failed to approve his building plans in respect of a
dwelling
house to be erected on a plot purchased by him, the outcome
of which was that relief was granted to him by agreement.
[14] It is plaintiff’s
case that it was entitled to cancel the agreement of 14 August 2007
and to claim the amount of R7 000,00
paid which contract was
interrelated to the rights afforded to it in terms of the Deed of
Sale. It also claims damages pertaining
to defendant’s breach
of contract based on the difference between the purchase price of the
property and the value thereof
together with loss of interest on the
amount invested, alternatively an amount equal to the escalation of
building costs from 1
October 2007 to 30 September 2010 insofar as
plaintiff was not allowed to build at an earlier stage when it
intended to build.
[15] Although defendant
abandoned the two special pleas the allegations contained therein are
also incorporated in the plea on the
merits. Defendant denies in
particular that plaintiff’s right to legally occupy the
purchased property, including the right
to erect a dwelling house
thereon, was subject to the conditions imposed upon it by the Free
State Province and in particular the
upgrading of Ednau Avenue.
Pertaining to upgrading of Ednau Avenue, it is defendant’s case
that the existing roadway for
Ednau Avenue is incorrectly positioned
relative to the road reserve and that it has been prevented from
upgrading Ednau Avenue
by the municipality. The effect of defendant’s
plea in this regard is that immediately upon registration of transfer
plaintiff
became entitled to submit building plans for the erection
of a dwelling house, that such plans, if in compliance with the
Building
Standards Act, 103 of 1977 and the requirements of any other
applicable law, would be approved, and that a certificate of
occupancy
would have been issued upon completion of the buildings.
[16] Pertaining to the
signing of the Deed of Sale by first plaintiff, it is defendant’s
case that insofar as no allegation
is made by plaintiff that the
signatory was authorised in writing by the other trustees, the Deed
of Sale is invalid
ab initio
for want of compliance with the
provisions of
section 2(1)
of the
Alienation of Land Act 68 of 1981
.
[17] It is finally denied
that plaintiff has suffered any damages due to the alleged breach of
contract and in respect of the agreement
of 14 August 2007, it is
defendant’s case that plaintiff was not entitled to cancel the
agreement.
LEGAL PRINCIPLES
APPLICABLE TO APPLICATIONS FOR AN ABSOLUTION OF THE INSTANCE
[18]
Harms JA dealt with the test for absolution formulated in
CLAUDE
NEON LIGHTS (SA) LTD v DANIEL
1976 (4) SA 403
(A) at 409 G –
H as follows:
“
This implies
that a plaintiff has to make out a
prima
facie
case – in the sense that there is evidence relating to all the
elements of the claim – to survive absolution because
without
such evidence no court could find for the plaintiff... As far as
inferences from the evidence are concerned,
the
inference relied upon by the plaintiff must be a reasonable one, not
the only reasonable one
...
Having said this, absolution at the end of a plaintiff’s case,
in the ordinary course of events, will nevertheless be
granted
sparingly but when the occasion arises a court should order it in the
interests of justice.” (Emphasis added)
See
GORDON LLOYD
PAGE & ASSOCIATES v RIVERA AND ANOTHER
[2000] 4 ALL SA
241
(A) at 243 B.
[19] For the sake of
completeness the well-known test set out in
CLAUDE NEON LIGHTS
loc cit
is in the following terms:
“
... when
absolution from the instance is sought at the close of plaintiff’s
case, the test to be applied is not whether the
evidence led by
plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which
a Court,
applying its mind reasonably to such evidence, could or might (not
should or ought to) find for the plaintiff.”
[20] Insofar as
documentary evidence is concerned and in particular the proper
interpretation thereof, the following principle has
been laid down:
“
Where the
plaintiff’s evidence consists of the production of a document
on which he sues and the sole question is the proper
interpretation
of the document, the distinction between the interpretation that a
reasonable man might give to the document and
the interpretation that
he ought to give to it tends to disappear. Nevertheless, even in such
cases
the
trial Court should normally refuse absolution unless the proper
interpretation appears to be beyond question
.”
(Emphasis added)
See
GAFOOR v UNIE
VERSEKERINGSADVISEURS (EDMS) BPK
1961 (1) SA 335
(AD) at 340
B – C.
[21]
Hattingh J found that the test to be applied in determining the
question whether the defendant’s application for absolution
from the instance should be granted is not whether the adduced
evidence required an answer, but whether such evidence held the
possibility of a finding for the plaintiff, or put differently,
whether a reasonable Court can find in favour of the plaintiff.
The
plaintiff’s evidence should consequently at the absolution
stage hold a reasonable possibility of success for him and
should the
Court be uncertain whether the plaintiff’s evidence has
satisfied this test, absolution ought to be refused. Where
the claim
is based on a document of which the interpretation is in dispute, the
interpretation on which the defendant relies should
be established
beyond reasonable doubt before his application for absolution can
succeed. See
BUILD-A-BRICK BK EN 'N ANDER v ESKOM
1996 (1) SA 115
(O) at 123 A – E. See also
ROSHERVILLE
VEHICLE SERVICES (EDMS) BPK v BLOEMFONTEINSE PLAASLIKE OORGANGSRAAD
1998 (2) SA 289
(O) at 293 D – H and Schmidt C W H,
Law of
Evidence
, loose leave edition, p. 3-16 to 3-18.
[22] I am mindful of the
fact that as a rule a Court refusing absolution at the close of the
plaintiff’s case should avoid
an unnecessary discussion of the
evidence and I shall consider this in my further discussion.
THE ARGUMENTS
[23] Mr. Porteous
attacked the validity of the Deed of Sale and consequently
plaintiff’s right to claim damages flowing from
an invalid
transaction. He referred to the pleadings and the defence that there
was non-compliance with section 2(1) of the Alienation
of Land Act,
68 of 1981 (the “Land Act”) in that first plaintiff only
signed the document and the other trustees did
not authorise the
transaction in writing or otherwise. The resolution of 25 August 2005
signed by two trustees is of a general
nature and in his submission
not proof of authority as required by the Land Act. Section 28(2) of
the Land Act provides that any
alienation of land which does not
comply with section 2(1) of the Act shall in all respects be valid
ab
initio
if the alienee has performed in full and registration of
transfer has taken place. I am not prepared to find at this stage of
the
proceedings that, based on an interpretation of the resolution or
the Land Act, defendant’s interpretation is beyond doubt
or
question.
[24] It was also
submitted that the common cause facts show that the aforesaid
resolution is the only authority relied upon by plaintiff.
A reading
of the document makes it clear that the trustees abrogated their
duties and functions in favour of first plaintiff who
was not even a
trustee at the time. The trust was nothing but first plaintiff’s
alter ego
and the validity of the transaction was accordingly
attacked based on common law principles. This issue is not properly
pleaded
and I am of the view that it would be prejudicial to
plaintiff to consider it at this stage of the proceedings. In any
event the
submission is again based on an interpretation of the
resolution and the same principles apply as stated above.
[25] Mr. Porteous
submitted that plaintiff has made out no case for damages insofar as
no evidence was led in support of its averments
that building plans
could or would not be approved if submitted and that plaintiff would
not be able to validly occupy the dwelling
house once erected. It is
a fact that plaintiff never submitted building plans, but at this
stage of the proceedings we know from
the correspondence between
plaintiff’s attorneys and the municipality, and the e mail of
10 February 2010 in particular,
that the municipality was not
inclined to issue an occupation certificate. The author of the e
mail, Rautenbach, is (or was) the
Manager: By-laws and Litigation of
the municipality and apparently a senior employee. I accept that at
least two occupation certificates
were indeed issued to others
earlier, but it is not certain under what circumstances. These were
issued in January 2009 and March
2009 respectively, while plaintiff
claims in the alternative damages based on escalation of building
costs from 1 October 2007
to 30 September 2010. I bear in mind that
plaintiff received transfer on 29 August 2007. The first occupation
certificates were
issued about 18 months later.
[26] Mr. Porteous urged
me to find that nothing prevented plaintiff to submit building plans
immediately after registration of transfer,
to ensure that the plans
are approved, to build and to obtain an occupation certificate. If
the municipality refused to co-operate,
plaintiff could take legal
action like Herbst and would have been successful. He submitted that
the conditions imposed could not
be relied upon by plaintiff as it
was a matter between defendant and the authorities. There is much to
be said for the argument
that these conditions are not “any
other applicable law” referred to in section 7 (1)(a) of the
Building Standards
Act and that the municipality would have no
discretion than to approve building plans in compliance with this
Act. Again, this
is matter for interpretaion and the same principles
as enunciated above apply. See
inter alia
the judgment of
Kruger J of the Free State High Court in
KOTZE NO v HALDON
ESTATES (PTY) LTD & OTHERS
– unreported, case no
2475/2010, delivered on 23 September 2010;
TRUE MOTIVES 84
(PTY) LTD v MAHDI & ANOTHER
2009 (4) SA 153
(SCA) at para
19 & further and
MUNICIPALITY OF STELLENBOSCH v SHELF-LINE
104 (PTY) LTD
[2012] 1 ALL SA 441
(SCA) at para 20 where the
SCA stated the following pertaining to township development:
“
The
development process is, of course, also designed to protect the
persons who will be acquiring property in the development and
will
become its residents and users of its amenities.....”
[27] In following the
advice evident from the case law dealing with applications for
absolution from the instance, the proper approach
is to give the
benefit of doubt to the plaintiff and consequently the defendant must
fail. There is no reason why costs should
not follow the event. It is
recorded for taxation purposes that such costs are those occasioned
by the hearing of the matter on
the 9th May 2012.
ORDER
[28] The following order
is issued:
1. Defendant’s
application for absolution from the instance is dismissed with costs.
________________
J.P.
DAFFUE, J
On behalf of plaintiff:
Adv. M.H. Wessels SC
Instructed by:
Mr. J.H. Conradie
Rossouws Attorneys
Bloemfontein
On behalf of defendant:
Adv. G.F. Porteous
Instructed by:
Mr. P. Schuurman
Hill, McHardy &
Herbst
BLOEMFONTEIN
/sp