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[2009] ZAGPPHC 158
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Troye Villa (Edms) Bpk and Others v Klub Lekkerrus/Libertas and Others (11748/2007) [2009] ZAGPPHC 158 (3 November 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(NORTH
GAUTENG HIGH COURT. PRETORIA
)
CASE
NO: 11748/2007
DATE:
3-11-2009
IN
THE MATTER BETWEEN
:
TROYE
VILLA (EDMS) BPK
1
st
PLAINTIFF
LEKKERRUS
WARMWATER BRON (EDMS) BPK 2
nd
PLAINTIFF
LIBERTAS
MINERALE BRON (EDMS) BPK 3
rd
PLAINTIFF
WERNICO
(EDMS) BPK 4
th
PLAINTIFF
LEKKERRUS
BESTUURSONDERNEMING BK 5
th
PLAINTIFF
JOHANNA
JACOBA VAN TONDER 6
th
PLAINTIFF
HERMAN
DANIEL WOITE 7
th
PLAINTIFF
AND
KLUB
LEKKERRUS/LIBERTAS
1
st
DEFENDANT
DIE
STAATSPRESIDENT VAN DIE
REPUBLIEK
VAN SUID-AFRIKA 2
nd
DEFENDANT
DIE
SUID-AFRIKAANSE MENSEREGTE KOMMISSIE 3
rd
DEFENDANT
MEESTER
VAN DIE HOOGGEREGSHOF 4
th
DEFENDANT
JUDGMENT
MAKGOBA.
J INTRODUCTION
[1]
This matter essentially pertains to the right of ownership of shares
in Second and Third Plaintiffs, which entities are the
registered
owners of the properties known as Portion 7 and Portion 11
respectively of the farm Welgevonden 343 district Potgietersrus
on
which Club Lekkerrus/Libertas, a mineral water resort in the Limpopo
Province is situated. The main role players herein are
the Sixth
Plaintiff. Ms Johanna Jacoba van Tonder (hereinafter referred to as
"Ms Van Tonder"), the widow of the Late
P J H van Tonder,
the founder of the Club, and the First Defendant (Club
Lekkerrus/Libertas) now governed by a new Board of Trustees
of which
Ms Van Tonder was previously the Chairperson.
[2]
The origin of the dispute lies in two contracts of Sale of Shares
entered into between the Late P J H van Tonder (hereinafter
referred
to as "Mr Van Tonder") and Club Lekkerrus and between Mr
Van Tonder and Club Libertas (both on 10 August 1990),
in terms of
which the shares and members' interests in the Second and Third
Plaintiffs were sold for minimum purchase considerations
of R4
?
5
million and R2.5 million respectively. The Plaintiffs aver that the
purchase price was never fully paid whilst the First Defendant
contends that same was fully paid.
[3]
Ms
Van Tonder. together with the other Plaintiffs instituted various
claims against the First Defendant:
3.1
A claim for the rectification of the share registers of the Second
and Third Plaintiffs [Lekkerrus Warm Water Bron (Pty) Ltd
and
Libertas Minerale Bron (Pty) Ltd respectively] to reflect the
deceased estate of P J H van Tonder as the sole shareholder:
3.2
Payment of R15 699 576,00 to the estate of Van Tonder;
3.3
A declarator declaring the two lease agreements in terms of which the
Third Defendant occupies Portions 7 and 11 of the Farm
Welgevonden
343 district Potgietersrus, duly cancelled and an eviction order;
3.4
A declarator that the First Defendant is not entitled to access to
the First and Fourth Plaintiffs' property.
Claim
5 was postponed
sine
die
in
terms of Rule 33(4) by agreement between the parties and Claim 6 was
abandoned at the commencement of the trial.
[4]
The
First Defendant instituted various counter-claims:
4.1
Claim for the rectification of the share registers of the Second and
Third Plaintiffs to reflect the First Defendant as the
sole
shareholder therein;
4.2
Repayment of R5 512 812,00 from the estate of the late P J H van
Tonder;
4.3
A
declarator that the First Defendant had become the owner of certain
properties by acquisitive prescription.
FACTUAL
BACKGROUND
[5]
It is common cause that the properties on which the holiday resorts
called Lekkerrus and Libertas were being conducted by Mr
Van Tonder
(Portion 7 and
11
of
the Farm Welgevonden 343) belonged to the Second and Third Plaintiffs
and were being let to the clubs. The clubs were managed
by two close
corporations of which the Fifth Plaintiff was one.
[6]
Prior
to
10
August
1990
the
late Mr Van Tonder was the owner of all the shares and loan accounts
in the two companies (Second and Third Plaintiffs) as he
conducted
the two resorts thereon through a firm named Van Tonder Vakansie
Beleggings.
[7]
Further relevant to the properties in contention, Mr Van Tonder
purchased the totality of shares of Wernico (Edms) Bpk ("the
Fourth Plaintiff) which is the registered owner of Portion 32 (a
portion of Portion 12) of the Farm Welgevonden 343. The hiking
trail
of the resort, the waste dump as well as the sewerage of the resort
and personnel houses are situated on this property. The
aforementioned aspects pertaining to the hiking trail, waste dump,
sewerage and personnel houses are only relevant to the First
Defendant's claim in regard to acquisitive prescription.
[8]
The Plaintiffs adduced evidence of Ms Van Tonder (the Sixth
Plaintiff) and Mr Johan van Zyl, an auditor. The First Defendant
concedes that their evidence, at least for the period up to 2005, is
credible and should be accepted. The First Defendant adduced
the
evidence of Mr Justus van Wyk, a forensic auditor, and Mr Lemmer, the
present vice-chairman of the board of trustees of the
First
Defendant.
[9]
On 10 August 1990 Club Lekkerrus and Club Libertas were officially
founded. The founding members were Mr and Ms Van Tonder,
Henry Woite
(Mr Van Tonder's auditor), Mr J van Wyk (their attorney) and a
personnel member of each of the clubs. The aforementioned
also formed
the initial Board of Trustees of each of the clubs and the following
agreements were entered into on the said date:
9.1
The constitution of each club;
9.2
Management agreements of each club:
9.3
Lease agreements in regard to the properties owned by the two
companies (Second and Third Plaintiff);
9.4
Purchase agreements in regard to the shares of the Second and Third
Plaintiffs (Annexures "E" and "F" to
Particulars
of Claim) between Mr Van Tonder and the respective clubs.
[10]
The last-mentioned agreements between Mr Van Tonder and the clubs in
regard to the shares are the core of the disputes in this
matter. In
terms of the agreements, which are basically identical apart from the
minimum purchase price. Mr Van Tonder sold the
totality of the issued
share capital as well as the totality of his loan accounts in the
respective companies to Club Lekkerrus
and Club Libertas.
[11]
The purchase consideration as formulated in clause 2 of the
agreements reads as follows:
"2.1
Die totale koopprys vir die aandele sowel as die leningsrekenings
beloop die gesamentlike bedrag van 'n som gelykstaande
aan 60% van
die lidmaatskapintreegelde (waarby ingesluit tydsdelingbelange wat
die KOPER van sy lede invorder oor 'n tydperk van
sestig maande vanaf
datum van die ondertekening hiervan, met dien verstande dat die
koopprys minstens die som van R4 500 000,00
(vier-en-'n-half miljoen
rand) sal beloop. [Note: In regard to Libertas this amount was R2 500
000,00.]
2.2
Betaling van voormelde koopsom geskied in kontant aan die VERKOPER
aan die einde van elke maand ooreenkomstig die formule hierbo
vermeld
(waarop die koopprys bereken word) ten
opsigte
van alle voormelde gelde wat die KOPER werklik van tyd tot tyd in
ontvangs neem.
2.3
Die eerste betaling ooreenkomstig voormelde formule sal plaasvind
voor of op 30 September 1990 en daarna op die laaste dag van
elke
daaropvolgende maand vir 'n totale tydperk van 60 maande vanaf datum
van sluiting van hierdie ooreenkoms, met dien verstande
dat die
voormelde minimum koopprys voor die afloop van die gemelde tydperk
van 60 maande betaal moet wees."
[12]
A further relevant and important provision contained in the
agreements is the non-variation clause to the effect that no
variations
or amendments of the agreements will be of any force or
effect unless same are reduced to writing and signed by the parties
to
the agreements.
[13]
In her evidence Ms Van Tonder gave a definition of
"
Lidmaatskapintreegelde
"
as reflected in the constitutions of the clubs. The constitution
differentiates between "
intreegelde
"
and "
ledegelde
"
under the heading "
Lidmaatskapgelde
".
It is only the "
intreegelde
"
which are, in terms of the above referred agreements to be applied in
satisfying the purchase price. "
Lidmaatskapintreegelde
"
entailed the once off payment someone makes for acquiring a timeshare
module for a week, once a year. The "
ledegelde
"
on the other hand entailed the membership fee that someone who
acquired timeshare would have to pay every year. The "
ledegelde
"
or membership fee was payable in terms of the contracts and not to be
taken into account as part of the payment of the purchase
price.
[14]
Ms Van Tonder dealt further in her evidence with the term
"accommodation fees". This entailed the money paid by an
outsider or non-member who visited the resorts. Such person then paid
accommodation fees per night stay. The accommodation fees
clearly do
not constitute "lidmaatskapintreegelde" and therefore can
in no form be considered as part payment of the
purchase price.
[15]
Ms Van Tonder testified that the 60% as referred to in clause
2
.1
of each of the purchase agreements annexures "E" and "F"
was decided upon so that the remainder would be
utilised and be
enough to run and operate the resorts/clubs. This did not turn out to
be possible as it happened later on that
what was supposed to have
been utilised as payment of the purchase price was actually utilised
as operating costs of the resorts/clubs.
According
to Ms Van Tonder, Mr Van Tonder could not and did not really make a
profit in the circumstances.
[16]
The properties on which the resorts/clubs operated were bonded to
Absa and the latter was only finally paid after the death
of Mr Van
Tonder. when Ms Van Tonder also paid in an amount to settle the
liabilities of the deceased estate towards Absa.
[17]
Subsequent to the establishment of the clubs, the resorts' management
was handled by Lekkerrus Bestuursonderneming Bk and Libertas
Bestuursonderneming Bk in terms of management agreements with the
respective clubs. At a general meeting of Club Lekkerrus on 17
August
1991 a decision was unanimously taken that the two clubs should
amalgamate.
[18]
It appeared from the evidence of Ms Van Tonder that a new
constitution was drafted for the
new-
club,
but it was never signed. Nobody, however, disputed that a new club by
the name of "Klub Lekkerrus/Libertas" was
formed. Since
1991 the resorts were therefore consolidated and controlled by a
single club. Hereafter, no mention was ever made
of the two previous
clubs. In no form or fashion did the initial clubs therefore continue
to operate or exist. There was no further
separate meetings of
trustees of the respective clubs after amalgamation, nor were there
separate sets of employees. They did not
retain any members, assets
or liabilities. Even the management agent remained one. namely
Lekkerrus Bestuursonderneming Bk (the
Fifth Plaintiff).
Hereafter,
all meetings and minutes of meetings were of the consolidated Club
Lekkerrus/Libertas.
[19]
From the financial statements made available as evidence during the
trial it was already apparent in 1994 that the timeshare
units sold
to members, and income through members, was insufficient to cover the
costs of running the resorts. For this purpose,
a certain portion of
accommodation fees of "tydelike lede" were used to operate
the resorts.
[20]
The situation of being cash stricken persisted throughout the
existence of the club. Ms Van Tonder testified that there was
pressure from Absa in regard to Mr Van Tonder's indebtedness towards
them.
From
the minutes of the board of trustees meeting dated 30 May 1996 it
appears that a new category of members was introduced, namely
"
Jaarlede
".
These members enjoyed no benefits than merely a right to make a
reservation for accommodation for which they pay per night.
At the
subsequent annual general meeting of 16 November 1996. it was also
resolved that such "Jaarlede" should be admitted
as
members. Furthermore it was decided that 60% of the income (being
accommodation fees) in this respect would go to Mr Van Tonder.
The
Plaintiffs contend that this constituted a binding agreement, hence
the claim for R15 699 576.00 as per claim 2 in the combined
summons.
[21]
During or about February 1997 Absa initiated sequestration
proceedings against Mr Van Tonder in regard to the referred
indebtedness.
Mr Van Tonder passed away on 23 July 1997 while still
being indebted to Absa. A settlement agreement was eventually reached
with
Absa on 2 March 1998 in regard to Mr Van Tonder's estate. As
mentioned above, it was Ms Van Tonder who committed herself in this
regard. It is clear that neither at this stage, nor at any stage, did
the club fully satisfy the purchase price as provided for
in the 1990
sale of shares agreements.
[22]
On 2 February 2007 the club, which is run by a new Board of Trustees
to the exclusion of Ms Van Tonder and Mr Woite, cancelled
the
management agreement with the Fifth Plaintiff. Subsequently the
Second and Third Plaintiffs cancelled the rental agreements
with the
club on 7 February 2007. The club was requested in writing to vacate
the properties by 10 August 2007. Notwithstanding
cancellation of the
rental agreements, the club refused to vacate the properties.
[23]
Regarding the expert evidence pertaining to the issue of what was
paid in regard to the purchase prices stipulated in "E"
and
"F" as well as the accommodation fees, the expert reports
in terms of Rule 36(9)(b) were filed. The pertinent conclusions
can
be summed up as follows:
23.1
Mr Johan van Zyl. an auditor, testified that the minimum price of R7
million (R4.5 million plus R2.5 million in terms of "E"
and
"F" respectively) had to be paid from 60%
"Lidmaatskapintreegelde" but it was never realised.
According
to the 2006 members lists R5 331 148,00 may have been
received and 60% thereof amounts to R3 198 688.00.
23.2
The Defendant's expert, Mr Justus van Wyk, also testified. The
relevant and rather decisive aspect of his evidence was the
fact that
he agreed with
AMENDMENT
OF PLEADINGS
[24]
Paragraph 21 of the Plaintiffs' Particulars of Claim in its
original form stated the following:
"21.
Op
10 Augustus 1990 is al die uitgereikte aandele en leningsrekenings
van mnr P H J van Tonder in elkeen van die twecde en derde
eisers
aangekoop deur. onderskeidelik Klub Lekkerrus van tweede eiser. en
Klub Libertas van derde eiser. Afskrifte van die afsonderlike
ooreenkomste word hierbv aangeheg as aanhangsels 'E' en 'F'
onderskeidelik.
"
The
First Defendant in its plea pleaded as follows:
"
Ad
paragrawe
18. 19. 20 en 21 daarvan
Die
bewerings vervat in hierdie paragrawe word erken."
[25]
On 18 June 2009 the Plaintiff brought an amendment to paragraph 21 of
its Particulars of Claim. The application for amendment
was not
opposed by the First Defendant. The amended paragraph 21 introduced
sub-paragraphs 1 to 9 and reads as follows:
Mr
Van Zyl that a maximum amount of R6 075 190,00 may have been paid
towards "lidmaatskapintreegelde" according to the
financial
statement. He could not comment on Mr Van Zyl's calculation of the
accommodation fees and he therefore did not dispute
it.
"21.1
Op 10 Augustus 1990 is al die uitgereikte aandele en leningsrekenings
van mnr P H .1 van Tonder in elkeen van die tweede
en derde eisers
aangekoop deur, onderskeidelik Klub Lekkerrus van tweede eiser. en
Klub Libertas van derde eiser. Afskrifte van
die afsonderlike
ooreenkomste word hierby aangeheg as aanhangsels 'E' en 'F'
onderskeidelik.
21.2
Klub Lekkerrus en Klub Libertas het tot 'n einde gekom gedurende
1991, en 'n nuwe klub is gestig, naamlik Klub Lekkerrus/Libertas.
die
Eerste Verweerder in hierdie aksie. wat 'n nuwe entiteit was.
21.3
Beide aanhangsels 'E' en 'F' het uitdruklike bepalings bevat dat die
ooreenkomste die gehele ooreenkomste tussen die partye
is en dat
enige wysiging of toevoeging daarvan van geen waarde of regskrag sou
wees nie tensy dit op skrif gestel is en deur beide
partye onderteken
is.
21.4
Eerste Verweerder is nooit vervang as 'n party tot aanhangsels 'E' of
'F' in skrif, onderteken deur al die relevante partye
nie, en geen
regsgeldige delegasie van regte en verpligtinge vanaf Klub Lekkerrus
en Klub Libertas na Eerste Verweerder het ooit
plaasgevind nie.
21.5
In die vooropstelling het die twee kontrakte. aanhangsels
'e'
en
'F. tot 'n einde gekom toe die twee afsonderlike klubs, naamlik Klub
Lekkerrus, en Klub Libertas, ontbind is in 1991.
21.6
Klousule 2.3 van beide aanhangsels
'e'
en
'F het bepaal dat betaling van die koopsom ingevolge beide
ooreenkomste moes plaasvind voor of op 30 September 1990, en daarna
op die laaste dag van elke daaropvolgende maand vir 'n totale tydperk
van 60 maande vanaf datum van sluiting van die ooreenkoms,
met dien
verstande dat die voormelde minimum koopprys voor die afloop van die
gemelde tyd van 60 maande betaal moes wees.
21.7
'n Periode van 60 maande het verstryk op 30 September 1995 op die
laaste, nie een van die 60 maande tydperke in aanhangsels
'e'
tot
'F' is skriftelik verleng nie, en paragraaf 2.3 van elkeen van die
ooreenkomste is nie skriftelik gewysig en onderteken deur
alle
relevante partye nie.
21.8
In die vooropstelling het aanhangsel
'e'
en
'F' derhalwe tot 'n einde gekom in 1991,
alternatiewelik
op
die laatste op 30 September 1995, na afloop van die 60 maande
periodes.
Alternatiewelik.
as
gevolg van die aangaan van aanhangsel 'G', wat 'n novasie van
aanhangsels
'e'
en
'F' daargestel het,
alternatiewelik
is
aanhangsels 'E' en 'F' by ooreenkoms tussen die partye daartoe. en
eerste verweerder, beeindig na die dood van mnr P H J van
Tonder en
voor die aangaan van aanhangsel 'G'.
21.9
As gevolg van bogenoemde is alle uitgereikte aandele wat oorgedra
moes gewees het ingevolge aanhangsels 'E' en 'F' terugoorhandig
aan
die verkoper ingevolge aanhangsels 'E' en 'F', mnr P H J van Tonder,
aUernatieM-elik
moes
alle uitgereikte aandele wat oorgedra was of moes gewees het
ingevolge aanhangsel 'E' en 'F' terugoorhandig gewees het aan
die
verkoper, mnr P
h
J
van Tonder en in sy naam geregistreer gewees het. en derhalwe in sy
bestorwe boedel geval het."
[26]
On 29 July 2009 the Third Defendant pleaded to the above
paragraphs 21.1 to 21.9 as follows:
11.
AD
PARAGRAAF 21 DA ARYAN
11.1
Die Eerste Verweerder erken dat die ooreenkomste. aanhangsels 'E' en
'F' tot die Eisers se Besonderhede van Vordering. gesluit
is.
11.2
Die Eerste Verweerder pleit dat die Eerste Verweerder sy verpligtinge
ingevolge die ooreenkomste nagekom het."
It
should be noted that in its plea the First Defendant does not
specifically deal with each of the allegations contained in
sub-paragraphs
21.1 to 21.9 of the Plaintiffs particulars of claim.
The plea as it stands purports to admit all the allegations set out
by the
plaintiffs.
[27]
During the course of the trial the First Defendant brought an
application for amendment of its plea, the effect thereof would
be
that the First Defendant now pleads to each and every specific
allegation in paragraph 21 of the particulars of claim. To this
the
Plaintiffs objected and on the ground that such an amendment amounts
to a withdrawal of admissions already made.
[28]
After hearing argument from all parties I refused the application for
amendment and gave my reasons as summarised hereunder.
[29]
Rule 22(3) states as follows:
"
Every
allegation of fact in the combined summons or declaration which is
not stated in the plea to be denied or to be admitted,
shall be
deemed to be admitted. If any explanation or qualification of any
denial is necessary, it shall be stated in the plea.
"
In
my view the First Defendant's plea does not comply with this rule. In
fact it purports to admit all the allegations. The proposed
amendment
will obviously amount to a withdrawal of the admissions already made.
[30]
For purposes of withdrawing an admission, the Applicant has to show
more than an applicant in respect of a normal amendment.
An applicant
must show and give a full explanation to convince the court of the
bona
fides
thereof,
and that the other party is not prejudiced thereby. See
J
RJanisch (Pty) Ltd
v
JM
Spilhaus & Co (WP) (Pty) Ltd
1992
1 SA 167
(CPD) at 170C-F;
President
Versekeringsmaatskappy Bpk
v
Moodley
1964
4 SA 109
(T):
Amod
v South African Mutual Fire & General Insurance Co Ltd
1971
2 SA 611
(N).
In
the founding affidavit the First Defendant took a standpoint that the
proposed amendment does not amount to a withdrawal of the
admissions.
It did not give a reasonable explanation for the withdrawal of the
admissions, how it came about, if the First Defendant
was
bona
fide
and
if there was no prejudice to Plaintiffs. Hence the application for
amendment of plea was refused.
[31]
The refusal of First Defendant's application for amendment of its
plea, is in my view, a technical knock-out against the First
Defendant. It put the First Defendant's case in jeopardy. Certain
crucial allegations of fact relied upon by the Plaintiffs in
their
case have now been admitted and have become common cause.
[32]
The following facts are therefore common cause, and not in contention
any more that:
32
.1
a new club, namely Klub Lekkerrus/Libertas was created, which was a
new entity, the First Defendant in the action, and the two
previous
separate clubs were dissolved in 1991;
32.2
First
Defendant was never substituted as a party to the two original
agreements, annexures
"e"
and
"F" in writing, signed by all the relevant parties;
32.3
no
lawful delegation of rights and obligations from the two clubs to the
First Defendant had ever occurred;
32
.4
the periods of sixty months referred to in annexures
"e"
and
"F" were not extended in writing and signed by the parties
with effect from
30
September
1995;
32
.5
annexures
"e"
and
"F" had terminated therefore in 1991 when no proper
delegation took place in accordance with the provisions of annexures
"e"
and
"F", and in particular in accordance with the non-variation
clause in those two agreements.
[33]
The non-variation clause in the agreements
"e"
and
"F" reads as follows:
"Hierdie
ooreenkoms is die gehele ooreenkoms tussen die partye hiertoe en is
enige wysiging of toevoeging daarvan van geen
waarde of regskrag nie
tensy dit op skrif gestel is en deur beide partye onderteken is."
PLAINTIFFS'
CLAIMS AND SUBMISSIONS
[34]
The Plaintiffs' case in respect of claim 1 is that upon termination
of the agreements the First Defendant had not complied
with the said
agreements and as such it is not entitled to the shares in the Second
and Third Plaintiffs.
[35]
The submission of the Plaintiffs is that any substitution of the two
original clubs with the new club that was created in 1991
had to
comply with the non-variation clause in each of the two agreements.
Therefore the delegation of rights and obligations by
the two
separate clubs had to be done in writing and had to be signed by all
three parties. See
Van
Achterberg v Walters
1950
3 SA 734
(T) at 745C-F; Christie
The
Law of Contract in South Africa
5
1
'
1
edition page 462.
[36]
It follows from the aforegoing that the only possible conclusion that
can be reached is that the purchase agreements terminated
in 1991
when the substitution was not done lawfully and when the two original
clubs ceased to exist.
The
admission therefore, by the First Defendant in its plea, that the two
original clubs had dissolved, is also in accordance with
the law
applicable.
[37]
I accordingly come to a finding that the two original purchase
agreements terminated in 1991. In any event, the sixty months
time
periods stipulated in the agreements within which the whole purchase
price for the shares should have been paid, was never
extended in
writing in terms of the agreements and therefore the agreements would
still have terminated on 30 September 1995.
In
the circumstances the shares of the two companies of Second and Third
Plaintiffs must accrue to the estate of the late Mr Van
Tonder and be
registered as such in the share register.
The
relief sought in this regard should therefore succeed.
[38]
The Plaintiffs also simultaneously therewith seek an order, on the
basis of restitution and the principles of restitution,
that
membership introduction fees ("lidmaatskapintreegelde") of
those members who are still members of the First Defendant,
should be
repaid to those members. In accordance with the calculation made by
the auditor, Mr Van Zyl, such amount is the sum of
R3 198 688.80. A
declaratory order will accordingly be made in this regard.
[39]
It needs to be mentioned at this juncture that after the death of Mr
Van Tonder. more specifically on 12 November 1997 an agreement
was
entered into by and between Mr Woite (in his capacity as executor of
the deceased estate of Mr Van Tonder) and Ms Van Tonder
(in her
capacity as a representative of Club Lekkerrus/Libertas) in terms
whereby the shares and interests of the late Mr Van Tonder
were
purportedly sold to the Club (First Defendant). This agreement turned
out to be null and void on the ground that the purchase
price was not
determined. This agreement is referred to as annexure "G"
to the Plaintiffs' Particulars of Claim.
[40]
A subsequent agreement which is annexure "H" to the
Particulars of Claim, also turned out to be null and void in
as much
as it was based on the void agreement, annexure "G". It is
common cause between the parties in this case that
the two agreements
"G" and "H" are null and void.
[41]
It is worthwhile to state paragraph 2.5 of annexure "G"
which reads as follows:
"Die
partye kom verder ooreen dat 60% van die akkommodasiegelde van die
jaarlede aan die verkoper betaal word in kontant vir
die onbepaalde
tydperk van 16 November 1996 op 'n maandelikse basis."
The
Plaintiffs' contention is that clause 2.5 can be regarded as
severable from the rest of the illegal and void agreement. Counsel
for the Plaintiffs submits that clause 2.5 has no bearing upon the
purchase price, it constitutes a separate agreement pertaining
to
payment of accommodation fees, which had nothing to do with the
purchase and sale part of the agreement, annexure "G".
Therefore, it is submitted further by counsel, that clause 2.5 should
be regarded as severable and standing on its own. The First
Defendant
contends that the clause is void together with the rest of the
agreement.
[42]
Referring to some authorities, counsel for Plaintiffs finally
submitted that the general rule is that where the illegal from
the
legal part of a contract cannot be separated, the whole contract is
void. Where they can be separated, the bad may be rejected
and the
good may be retained. See Christie
The
Law of Contract in South Africa
5
th
edition pages 388 to 391;
Sasfin
(Pty) Ltd
v
Beukes
1989
1 SA 1
(A);
Du
Plooy
v
Sasol
Bedryf(Edms) Bpk
1988
1 SA 438
(A).
I
am persuaded by counsel's argument in this regard and
i
therefore
make a finding that clause 2.5 of annexure "G" is severable
from the rest of the void agreement.
[
43]
In accordance with claim 2, the Plaintiffs claim payment to the
estate of Van Tonder, of all outstanding accommodation fees
of the
year members in terms of clause 2.5 of annexure "G". The
amount claimed as per particulars of claim is R15 699
576,00. The
uncontroverted evidence by the expert of the Plaintiff, Mr Van Zyl
puts the amount at R18 751 137,40. However the Plaintiffs
are settled
with the conservative sum of R15 699 576,00 as supported by minutes
of the meeting of members during the year 2006
as opposed to the
higher calculated amount.
[44]
Because of the fact that annexure "G" is void, payment of
the accommodation fees of the year members as per clause
2.5, can
never be and should not be regarded as payment of the purchase price.
Therefore the amount in respect of accommodation
fees should accrue
to the deceased estate of the late Mr Van Tonder.
[45]
The uncontroverted evidence of Ms Van Tonder was that on 16 November
1996 a decision was taken at the general meeting of members
of the
First Defendant that 60% of such accommodation fees will be paid to
her late husband, Mr Van Tonder. She testified that
the intention was
never that these funds would be regarded in substitution of the
purchase price for any shares.
[46]
The evidence pertaining to these claim was strengthened by the
evidence of Mr Lemmer who did not dispute that the trustees
at three
different meetings confirmed the amounts reflected in those minutes
as being correct and that they accepted that the amounts
were
outstanding. Therefore, the evidence of Ms Van Tonder in conjunction
with the evidence of Mr Lemmer, indicates on a balance
of
probabilities that the accommodation fees (60% thereof) were never
paid since 1996, and therefore the claim of the Plaintiff
in this
regard must succeed.
[47]
The Plaintiffs' claim 3 relates to the two lease agreements which
were entered into simultaneously with annexures "E"
and
"F". In terms of the lease agreements the then two clubs
occupied the properties, Portions 7 and 11, of the farm
Welgevonden
owned by the Second and Third Plaintiffs respectively. The lease
agreements are annexures "C" and "D"
to
Plaintiffs' Particulars of Claim. The evidence was that these two
lease agreements were terminated by Ms Van Tonder as the only
director of the Second and Third Plaintiffs with effect from 10
August 2007.
Because
of the fact that the Second and Third Plaintiffs are the owners of
Portions 7 and 11 respectively of the farm Welgevonden
343, district
Potgietersrus, the Second and Third Plaintiffs became entitled to
access and occupation of these properties owned
by them with effect
from 10 August 2007. It is common cause between the parties that
Second and Third Plaintiffs were not granted
access to the properties
and therefore it follows that the declaratory order sought by the
Second and Third Plaintiffs should be
granted.
In
terms of claim 4 the First and Fourth Plaintiffs allege that the
First Defendant and its members exercised control over the properties
belonging to First and Fourth Plaintiffs and that no agreements exist
in respect thereof.
The
First Defendant and its members have access of the properties by use
of a hiking road, sewerage plant, waste dump and lapa.
The
First Defendant pleads that the First Defendant and its predecessors
in title utilised these properties for an uninterrupted
period of
thirty years as if they were owners of the properties. The First
Defendant therefore alleges that the First Defendant
became owner of
the properties through acquisitive prescription.
The
First Defendant's counter-claim pertaining to acquisitive
prescription will be considered hereunder. Should the defence of
acquisitive prescription not succeed, it is clear that the First and
Fourth Plaintiffs are entitled to access and use of the properties
and thus should succeed in their claim.
FIRST
DEFENDANT'S COUNTER-CLAIMS
[51]
The First Defendant instituted three counter-claims, namely-
51.1
claims for the rectification of the share registers of the Second and
Third Plaintiffs to reflect the First Defendant as the
sole
shareholder therein;
51.2
repayment of R5 512 812,00 from the estate of the late P H J van
Tonder;
51.3
a declarator that the First Defendant had become the owner of certain
properties by acquisitive prescription.
[52]
Since I have already made a finding that the estate of the late PH J
van Tonder is entitled to all the issued shares in the
Second and
Third Plaintiffs, it goes without saying that the First Defendant's
claim for the rectification of the share registers
of the Second and
Third Plaintiffs to reflect the First Defendant as the sole
shareholder therein cannot succeed.
Regarding
the claim for repayment of R5 512 812.00. the First Defendant failed
to present any evidence from Mr Lemmer or from any
other source to
support this claim. There is no basis laid for this claim whatsoever.
[53]
It is necessary to consider and determine the claim of First
Defendant of acquisitive prescription. The first requirement to
prove
is possession. Such possession must be full juristic possession.
There must be possession and the mental reservation and
intention to
possess
as
owner
.
See
Morkels
Transport (Pty) Ltd v Melrose Foods (Pty) Ltd
1972
2 SA 264
(W) at 467G;
Glaston
House (Pty) Ltd v Cape Town Municipality
1973
4 SA 276
(C) at 281D
-e.
[54]
In
Malan
v Nabygelegen Estates
1946
AD 562
at 574 the court said the following: ""In order to
avoid misunderstanding it should be pointed out here that mere
occupation
of property
'nec
vi nec clam nec precario'
for
a period of 30 years does not necessarily vest in the occupier a
prescriptive title to the ownership of that property. In order
to
create a prescriptive title, such occupation must be a user adverse
to the true owner and not occupation by virtue of some contract
of
legal relationship such as lease or usufruct which recognises the
ownership of another."
See
also
Bishop
v
Stafford
1974
3 SA 1
at 8A-B where it was held that the
nec
precario
requirement
is that the possession must
not
be
by virtue of a revocable permission.
[55]
According to the evidence of Ms Van Tonder. which is not contested,
the permission to use the hiking roads, the sewerage facility,
the
waste dump and the lapa, was given on the basis of a clear
understanding between the First Defendant and its representatives
on
the one hand, and her husband, herself and the Second. Third and
Fourth Plaintiffs on the other hand, that the permission can
at all
relevant times be withdrawn.
There
was therefore an agreement on the basis that there would be use, but
with consent. Such consent was withdrawn in August 2007.
[56]
It is therefore clear that the First Defendant can never be found as
having used the property as if it was the owner thereof
or as if it
wanted to become the owner thereof. In the circumstances the claim
for acquisitive prescription cannot succeed.
CONCLUSION
[57]
The ultimate result in this matter is that the Plaintiffs have proved
their claims and the First Defendant failed to prove
any of its
counter-claims.
ORDERS
[58]
I accordingly grant the following orders:
1.
A declaratory order that-
1.1
the deceased estate of the late P H J van Tonder is entitled to
possession and registration of all issued shares in Second and
Third
Plaintiffs in its name as well as cession of all loan accounts of
First Defendant in Second and Third Plaintiffs and that
the share
registers of Second and Third Plaintiffs be rectified accordingly:
1.2
any transfer of all issued shares in Second and Third Plaintiffs to
the deceased estate of the late P H J van Tonder and any
rectification of the share registers of the Second and Third
Plaintiffs should not be effected before the deceased estate of the
late P H
.1
van
Tonder pays the sum of R3 198 688.80 to the First Defendant.
2.
That the deceased estate of the late P H J van Tonder is entitled to
payment by the First Defendant of the sum of R15 699 576,00
together
with interest thereon at the rate of 15,5% per annum from 1 January
2007 to date of payment.
3.
A declaratory order that-
3.1
the two lease agreements, annexures "C" and "D"
were lawfully terminated with effect from 10 August 2007;
3.2
the Second and Third Plaintiffs are. with effect from 10 August 2007.
entitled to full possession, control and occupation of
the
properties, namely Portion 7 of the farm Welgevonden 343. district
Potgietersrus held under Title Deed T210008/60 and Portion
11 of the
farm W
T
elgevonden
343. district Potgietersrus held under Title DeedT15902/62;
3.3
that the First Defendant had no right of access, possession, control
or occupation of the properties referred to in 3.2 above,
with effect
from 10 August 2007.
4.
A declaratory order that the First Defendant and its members are,
with effect from 10 August 2007, not entitled to any right
of access,
possession, control and occupation of any of the properties belonging
to First and Fourth Plaintiffs, namely Portions
21. 22, 23. 24 and 25
of the farm Welgevonden 343 district Potgietersrus, Registration
Division KR. Limpopo Province and Portion
32 (a portion of Portion
12) of the farm Welgevonden 343, district Potgietersrus, Registration
Division KR, Limpopo Province.
5.
That the First Defendant and its members be and are hereby ordered to
vacate the properties referred to in 3.2, 3.3 and 4 above
within 30
(thirty) days of this order.
6.
That the First Defendant's counter-claims are dismissed with costs.
7.That
the First Defendant pays the costs of this action, such costs to
include the costs of two counsel of which one is a Senior
Counsel.
E
M MAKGOBA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
11748-2007
HEARD
ON: 7, 8, 9, 12, 13, 14 & 16 OCTOBER 2009
FOR
THE PLAINTIFFS: R DU PLESSIS SC & W ROOS
INSTRUCTED
BY: MARIUS COERTZE ATTORNEYS
FOR
FIRST DEFENDANT: P ELLIS SC & A A BOTHA
INSTRUCTED
BY: FRANS RABIE ATTORNEYS c/o VAN DER MERWE ATTORNEYS