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[2011] ZAFSHC 117
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De Bruyn NO and Others v Kotze NO and Others (1726/2011) [2011] ZAFSHC 117 (28 July 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 1726/2011
In
the matter between:-
MRS
MARIA ALETTE DE BRUYN N.O.
…...................................
1
st
Applicant
MRS
MARTHA ELIZABETH DE BRUYN N.O.
….....................
2
nd
Applicant
MR
MICHIEL WILHELM GERHARDUS VOGES N.O.
….......
3
rd
Applicant
and
MR
JOHANNES CHRISTIAAN KOTZE N.O.
…....................
1
st
Respondent
MR
GRAHAM CORBETT COETZEE N.O.
…........................
2
nd
Respondent
MR
JOHANNES CHRISTIAAN KOTZE N.O.
…...................
3
rd
Respondent
MR
GRAHAM CORBETT COETZEE N.O.
….........................
4
th
Respondent
TOBIE
MYBURGH AFSLAERS CC
…......................................
5
th
Respondent
_____________________________________________________
HEARD
ON:
23
JUNE 2011
_____________________________________________________
DELIVERED
ON:
28
JULY 2011
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M.
MUSI, JP
[1] On
14 April 2011 Kruger J granted a rule
nisi
in
this matter, which was returnable on 26 May 2011. On the latter date
the rule
nisi
was by
agreement extended to 23 June 2011 in order to allow the respondents
time to file their answering affidavit and for the applicants
to
reply thereto, if so minded. The parties filed the relevant
affidavits and the matter came before me for hearing.
[2]
The rule
nisi
provides
as follows:
“
IT IS
ORDERED THAT:
1. The forms, service and time periods
provided for in the rules be dispensed with and the matter be heard
as one of urgency in
terms of Rule 6(12);
2. A rule
nisi
do issue calling
upon the Respondents and all interested parties to appear to show
cause, if any, on
Thursday
26 MAY 2011
om
09:30
,
as to why the following order should not be made final:-
2.1 An order
directing the First and Second Respondent to immediately deliver to
the Applicant sheep as described in the lease agreement
dated
25
AUGUST 2007
namely:-
2.1.1
55
Dormeer ewe in lamb;
2.1.2
21
Dormer ewe in lamb;
2.1.3
130
Meat Merino ewe in lamb;
2.1.4
22
Meat Merino ewe in lamb;
2.2 An order
directing the First and Second Respondent to immediately delivered to
the Applicant, sheep as described in the lease
agreement dated
25
September 2007
namely:-
2.2.1 76 Dormer ewe;
2.2.2 59 lambs;
2.2.3 3 Merino Ram;
2.3 An order interdicting and
restraining Fifth Respondent from including the sheep in the sale of
the FARM SKERMERING also known
as FARM 214 PORTION 2, REGISTRATION
DIVISION BLOEMFONTEIN held under title deed T2055/2004 (“the
farm”) scheduled to
take place on 15 April 2011;
2.4 That the First and Second
Respondent be ordered to pay the costs of this application;
3. Prayers 2.1, 2.2 and 2.3 shall
operate as an interim interdict pending the return day;
4. Copies of the interim order is
served upon the Respondents by the Sheriff of the Court;”
[3]
The application had been brought on the basis of urgency, the purpose
of which was firstly, to ensure that the sheep forming
the subject of
the dispute were not sold alongside the farm Skemering on which the
applicants had believed they were kept (prayer
2.3). The second
purpose was to secure the return of the sheep (prayers 2.1 and 2.2).
Although prayers 2.1, 2.2 and 2.3 were to
operate as an interim
interdict pending the return day, it has had no effect
since
the sheep have not been delivered to the applicants and it turns out
that they were not kept on Skemering. Paragraph 2.4 of
the rule
nisi
has
according fallen away and the dispute now centres on prayers 2.1 and
2.2. The applicants insist on a final order for delivery
of the sheep
(restitutionary interdict) whereas the respondents argue that the
applicants have not made out a case for final relief.
It is common
cause that for the applicants to succeed, they must satisfy all the
requirements of a final interdict.
[4] This dispute arises
from two similar agreements of lease entered into by and between Ida
de Bruyn Trust, which is represented
in these proceedings by its
trustees, the first, second and third applicants, on the one hand,
and Jo-Marie Trust, represented
in these proceedings by its trustees,
the first and second respondents, on the other hand. Ida de Bryun
Trust leased to Jo-Marie
Trust a total of 366 sheep for definite
periods, which expired during August and September 2010. I should
point out at this juncture
that the first and second respondents have
also been cited as third and fourth respondents in their capacities
as the trustees
of another trust called the Skemering Trust. It is a
trust that owns the farm Skemering on which it had been thought the
sheep
were kept. The third, fourth and fifth respondents were cited
only as interested parties and no order was sought against them. The
basis on which these latter three respondents were cited has since
fallen away and they will not feature any further in this judgment.
I
shall henceforth refer to the applicants collectively as the
applicant, this being reference to the Ida de Bruyn Trust and shall
refer to the respondents collectively as the respondent, this being
reference to the Jo-Marie Trust.
[5] The main ground on
which the application is opposed centres on the interpretation of the
last part of clause 4 of the lease
agreements, which reads as
follows:
“
Die HUURDER
moet op die verstrykingsdatum dieselfde getal lewende hawe wat in
dieselfde toestand en kondisie en van ongeveer dieselfde
ouderdom is
as wat die lewende hawe was met die aangaan van die ooreenkoms,
aan
die VERHUURDER terugbesorg, of die aanvanklike kapitale bedrag
terugbetaal
op
die kapitale bedrag.” (My emphasis)
[7] It
is common cause that the respondent chose to keep the sheep and to
pay their value; that the applicant had agreed to accept
payment and
also acceded to the various requests for extension to enable the
respondent to raise the amount due. Mr. Greyling,
who appeared for
the respondent, argued that the clause created an option and
submitted that since the applicant agreed to accept
payment, a
binding agreement came into being whereby the applicant forfeited the
right to claim return of the sheep. Counsel submitted
that the only
claim that the applicant now has, is for damages. In this regard
counsel argued that the applicant should have issued
summons instead
of proceeding by way of motion.
[8] The applicant
disputed that the clause provides for an option. Mr. Johnson, who
appeared for the applicant, argued that the
clause provided the
respondent with two choices: either to return the sheep or to pay
their value, either of which had to be exercised
at the date of
expiry of the lease. If it chose to keep the sheep, it had to pay and
it could not keep the sheep whilst not paying.
Counsel argued that
the fact that the applicant gave the respondent an indulgence to
raise funds did not detract from the applicant’s
entitlement to
demand return of the sheep if the respondent failed to raise the
capital amount.
[9]
Quite clearly the matter turns on the interpretation of the clause
and the principles governing interpretation of written contracts
apply. The first and foremost enquiry is to ascertain the intention
of the parties. In this regard the language used in the document
is
to be given its ordinary, grammatical meaning unless this would
result in some absurdity or some repugnancy or inconsistency
with the
rest of the document. See
COOPERS
& LYBRAND AND OTHERS v BRYANT
[1995] ZASCA 64
;
1995
(3) SA 761
(A)
at
767 E – F. Words used in the contract should not be considered
in isolation, but must be viewed in the context of the particular
clause and the contract as a whole, bearing in mind the nature and
purpose of the contract. See
COOPERS
& LYBRAND
,
supra
,
at 767 I – 768 B;
FEROX
INVESTMENTS (PTY) LTD v BLUE DOT NURSERY CC t/a JASMINE PLANT &
BIRD CENTRE
[2006]
1 ALL SA 17
(O) par. [7]. Now interpretation of a written contract is
an enquiry to be undertaken by the court and extrinsic evidence is
allowed
only insofar as it may contextualise the contract. See
KPMG
CHARTERED ACCOUNTANTS (SA) v SECUREFIN LTD AND ANOTHER
2009 (4) SA 399
(SCA)
par. [39].
[10]
In
casu
the
common cause facts sufficiently contextualise the contract and there
is no need to resort to any further evidence. In the premises,
it
makes no difference that the applicant chose motion proceedings.
[11] The following are
common cause facts or are not disputed:
11.1 The periods of both
leases expired in August and September 2010.
11.2 The respondents did
not return the sheep to the applicant, but chose to keep them and
promised to pay their value.
11.3 The capital amount
that is payable to the applicant in lieu of the return of the sheep
is R415 359,32.
11.4 The applicant agreed
to accept payment and even agreed to let the respondents sell the
sheep in order to raise the capital
amount.
11.5 The respondent has
to date been unable to pay the capital amount or any portion thereof.
11.6 The respondent is
still in possession of the sheep or some of them.
[12] A reading of the
clause in the context of the contract as a whole renders the
construction advanced on behalf of the respondent
untenable. It would
lead to a continuation of the present impasse where the respondent
keeps the sheep without paying for them,
something that the parties
could not have intended. In my view, the interpretation that accords
with the language of the contract
read as a whole and its purpose, is
the one advanced on behalf of the applicant. The operative word is
“verstrykingsdatum”,
the date of expiry of the lease.
This word features throughout clause 4 and stipulates what must be
done at the expiry of the lease
term: either the lessee returns the
sheep or pays their value. The return of the sheep or payment of
their value must transpire
at the date of expiry. That means that if
the lessee decides to keep the sheep, but fails to pay, it is in
breach of the contract
and the lessor will be entitled to demand
either the return of the sheep or payment of their value. The fact
that the lessor has
given the lessee an extension of time to raise
the capital amount, does not detract from its right to claim the
return of the sheep
if the lessee fails to pay. This conclusion is
fortified by clause 14.3 relating to the granting of indulgences and
extensions.
The argument that the relevant clause has created an
option is, in my view, without merit. If the parties had intended to
create
an option, they would have said so. As it is, the word option
(opsie) does not even appear in the clause.
[13] I note that the
respondent claims in its answering affidavit that some of the sheep
are no longer there for one or another
reason, something that had not
been disclosed to the applicant. This, however, makes no difference.
The lease agreement does not
demand return of exactly the same sheep,
but stipulates return of the same number of sheep of comparable type,
condition and age
and in terms of clause 13.1 the respondent carried
the risk relating to the theft of death of the sheep.
[14] In the premises the
following order is made:
1. The first and second
respondents are directed to immediately deliver to the applicants
sheep as described in the lease agreement
dated 25 August 2007
namely:
“
2.1.1
55 Dormer ewe in lamb;
2.1.2 21 Dormer ewe in
lamb;
2.1.3 130 Meat Merino ewe
in lamb;
2.1.4 22 Meat Merino ewe
in lamb.”
2. The first and second
respondents are directed to immediately deliver to the applicants
sheep as described in the lease agreement
dated 25 September 2007
namely:
“
2.2.1
76 Dormer ewe;
2.2.2 59 lambs
2.2.3 3 Merino Ram.”
The first and second
respondents are ordered to pay the costs of the application, jointly
and severally, the one paying the other
to be absolved.
____________
H.M.
MUSI, JP
On
behalf of first, second and
third
applicants: Adv. J.M.C. Johnson
Instructed
by:
Rossouws
Attorneys
BLOEMFONTEIN
On
behalf of first, second, third
and
fourth respondents: Adv. P. Greyling
Instructed
by:
Steenkamp
De Villiers & Coetzee
BLOEMFONTEIN
/sp