Itumeleng Estates (Edms) Bpk and Others v Mangaung Plaalike Munisipaliteit (2781/2008) [2009] ZAFSHC 62 (21 May 2009)

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[2009] ZAFSHC 62
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Itumeleng Estates (Edms) Bpk and Others v Mangaung Plaalike Munisipaliteit (2781/2008) [2009] ZAFSHC 62 (21 May 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 2781/2008
In the case between:
ITUMELENG ESTATES
(EDMS) BPK
1
st
Applicant
HENDRIK ADAM
ALBERTYN LAMBRECHTS N.O.
2
nd
Applicant
JAN GEORGE FOURIE
N.O.
3
rd
Applicant
and
MANGAUNG PLAASLIKE
MUNISIPALITEIT
Respondent
JUDGMENT:
NXUSANI, AJ
_____________________________________________________
HEARD ON:
7 MAY 2009
_____________________________________________________
DELIVERED ON:
21 MAY 2009
_____________________________________________________
[1]
On
14 January 1998 Hennie Lambrechts Architects made an offer to the
Respondent’s predecessor, the Bloemfontein Transitional Local

Council, to purchase the property upon which the Bloemfontein Golf
Club is situated. This property is described as the remainder
of the
farm Bloemfontein 654, in extent 109,32 hectare.
[2] The Applicants have
not put up a copy of the letter of 14 January 1998 to enable the
Court to determine the terms thereof.
[3] The Applicants
intended to develop the land into a golf estate with a course, a
sports academy, residential units, commercial
and other facilities
including a hotel.
[4] Hennie Lambrechts
Architects made a second offer to the Respondent. They wanted to
purchase the land to the east of the Bloemfontein
Golf Course because
more land was needed for the golf estate. This happened on 24 April
1998. This piece of land is described as
subdivision number 92 of the
farm Bloemfontein 654, in extent 24.15 hectare.
[5] This second offer was
contained in annexure “R13”. It reads as follows:
“
We wish to apply for an extension
of our application to purchase the land on the eastern boundary of
the Bloemfontein Golf Club
up to the by-pass road.”
A Site indication was
attached to the letter of 24 April 1998. It is the alleged
alienation of this latter portion which has caused
the Applicants to
bring this application.
[6] The eastern portion
(the subdivision 92 of the farm Bloemfontein 654) can be seen at page
33 of the papers. A pencil has been
brought onto the coloured
diagram to indicate where it is situated.
[7] It cannot be argued
that the offer of 24 April 1998 had anything to do with the
Bloemfontein Country Club Trust (“the Trust”)
because the Trust
only appointed the Second Applicant as a Trustee on 28 April 1998.
[8] The Respondent
informed Hennie Lambprecht Architects that the council was in
principle willing to approve the application to
purchase the first
piece of land. The willingness of the council emerged at its meeting
of 25 June 1998. The final approval would
only be made subject to
certain the conditions. These conditions are not repeated in this
judgment. The Respondent requested Hennie
Lambrechts Architects to
indicate, in writing, their acquiesence to the council resolution.
Hennie Lambrechts Architects was to
forward detailed development
proposal for consideration.
[9] In its letter of 30
September 1998 (which has the words “ontvangs 5-10-1998”), the
Respondent notified Hennie Lambrechts
Architects that it had resolved
on 23 September 1998 to approve the offer to purchase the land on the
eastern boundary of the Golf
Club. Additional conditions, which
constituted a counter offer, were imposed. This counter offer did not
require, in its terms,
any written acceptance.
[10] Hennie Lambrechts
Architects amplified their offer to purchase the two pieces of land
on 26 October 1998. They aksed the council
to consider a number of
requests. One of these was for a discount in the purchase price. This
request was not made on behalf the
Trust but in their own stead.
[11] There is a second
letter of 1 December 1998 written by Hennie Lambrechts Architects.
This document was not discovered by either
of the parties. I assume
that nothing turns on the contents thereof.
[12] The Respondent
accepted the offers made by Hennie Lambrechts Architects. This
acceptance is contained in a letter dater 7 February
1999. It was
received by Hennie Lambrechts Architects on 8 February 1999. There
were additional conditions, not foreshadowed in
the first and second
offers. The salient part of the decision is captured in paragraph C
as follows:
“
That the Bloemfontein Gold Club and
surrounding land (portion of the remainder of the farm Bloemfontein
654 as well as subdivision
92 of the farm Bloemfontein 654), in
extent over 110 ha as shown on the proposed lay-out clam (attached as
annexure B), be alienated
to you and/or nominee and that the selling
price of the said land and improvements be equal to the amount of the
outstanding loan
namely, R3 361 862,00 (VAT excluded), but that the
request for a total discount not be granted due to the yearly
financial loss
to council, i.e. R470 424,00 for the first financial
year and also further subject to the following conditions,”
[13] A number of
conditions were set out in this letter. They required Hennie
Lambrechts Architects to comply with several obligations.
These
relate to matters such as rezoning; the appointment of a consultant
to consolidate the land; the liability for certain costs;
the
appointment of a professional land surveyor; the obtaining of a
certificate from the Free State Provincial Government; the
submission
of a traffic impact study; the details of future access to the
premises; the completion of an environmental impact study;
the
reduction of noise levels; the provision for the protection of the
fauna and flora; matters relating to the electricity required
for the
premises; provision for municipal services; the protection of the
lessee in the Deed of Sale; and the provision of rates
and sanitation
fees.
[14] Hennie Lambrechts
Architects was asked to indicate their written acceptance of the
council’s resolution.
[15] It is common cause
that no written acceptance of the council’s resolution was ever
delivered.
[16] I am going to assume
that a contract came into existence between the Respondent and Hennie
Lambrechts Architects and/or their
nominee. I also assume that there
was compliance with the
Alienation of Land Act, 68 of 1981
. It is
trite that such a contract can compose of several written
instruments.
See:
CRAIB
v CRISP
1984 (3) SA 594
(T), BAILES v HIGHVELD 7 PROPERTIES (PTY)
LTD
1998
(4) SA 42
(N)
[17] Hennie Lambrechts
Architects then began complying with the conditions set out in the
letter of acceptance. One such example
is to be found in the letter
of 20 July 1999 containing an application for Consistency with the
Guideline for Bloemfontein. In
this application, Hennie Lambrechts
Architects represetnted to the Head: Spatial Planning Directorate,
that they were acting on
behalf of their client, the Trust. The
letter was also signed for and on behalf of the Trust. Hennie
Lambrecht also signed an
application, on behalf of the Bloemfontein
Country Club Trust IT775/98 and on behalf of Jan George Fourie This
happened, on 31
May 1999. It was addressed to the Free State
Provincial Government for Consistency with the Guide Plan. The
subsequent letters
written to the Respondent had the words at the end
thereof: “Principle [sic] Agents”, qq Bloemfontein Country Club
Trust”.
The letters written dated 31 May 2005, 21 September 2005,
26 January 2006, 7 April 2006, 11 April 2006, 16 May 2006, and 8 June

2006 did not give any indication that the author was doing so in his
capacity as a Trustee. The only response from the Respondent
is dated
7 November 2006. The rest of the leters were simply ignored. Hennie
Lambrecht Architects request for progress reports
fell on deaf ears.
[18] I digress to
indicate the Courts concern at the failure of the Respondent to deal
with correspondence properly and timeously.
The Constitution requires
local government to be accountable and to ensure a public service
committed to high standards of professional
ethics, the efficient,
economic and effective use of resources. It is the duty of a
municipality to ensure a public service committed
to transparency by
providing timely, accessible and accurate information.
[19] The Respondent
imposed three additional conditions which were omitted in the letter
of 1 February 1999. These related to the
provision of a professional
engineer to investigate the design and supervise the construction of
new municipal services; the obligation
of the “applicants” for
damages in case civil services were moved or increased, and, the
provision for servitudes in favour
of the Respondent. The Second
Applicant alleges that he accepted all the conditions imposed by the
Respondent.
[20] There were
considerable delays thereafter. Numerous letters were written to the
Respondent. In some of the letters the author
clearly acted in a
representative capacity and in others no such indication was given.
[21] On 22 January 2007
the Acting Executive Director: Economic Development and Planning of
the Respondent wrote a letter to Hennie
Lambrechts Architects in the
following terms:
“
Please be informed that the
purchase price of the above-mentioned property remains unchanged and
stand at R3 360 000 000-00 (Three
million three hundred and sixty
thousand).
The municipality is prepared to
proceed with this transaction, however subject to the following
conditions, namely,
i that the Deed of Sale be signed
within three (3) months from the date of this letter, failing which
the allocation of the property
in question shall lapse;
ii that the necessary town planning
and surveying processes be finalized with [sic] a further period of
twelve (12) months from
the date of signature of the Deed of Sale
referred to under paragraph i above, failing which the allocation of
the property in
question shall lapse and all wasted legal costs in
respect of the drafting of the Deed of Sale be for your account;
iii that transfer of the property and
payment of the purchase price be effected within a further period of
three (3) months from
the expiry of the period referred to under ii
above, failing which the allocation of the property in question shall
lapse and any
wasted costs be for your account; and
iv that the development must be
completed within a further period of twenty four (24) months from the
date of transfer of the property
into the name of the purchaser
failing which the land shall be transferred back to the municipality
for the sole cost of the purchaser
or any successor in title and that
council’s liability be the payment of the initial purchase price
paid by the first purchaser,
without any claim for interest. [sic]
Your acceptance hereof is urgently
awaited so that this long outstanding matter can be finalized.”
[22] Some weeks after the
letter of 22 January 2007 and some twenty days before the three month
period, the Second Applicant notified
the Respondent that the Trust
accepted the purchase price as well as the stipulations set out in
i,ii, iii and vi in the letter
of 22 January 2007. The Trust
requested the Respondent to “proceed urgently with the preparation
of the Deed of Sale as well
as all necessary documentation”. The
minutes of the Respondent indicate that the Applicant for the
purchase of the “Country
Club” was “Messrs Hennie Lambrecht
Architects acting on behalf of a client”.
[23] The 2
nd
and 3
rd
Applicants, alive to the deadline of 22 April 2007 wrote a letter on
12 April 2007 to the Respondent. They reminded the Respondent
of its
stipulation that the Deed of Sale had to be finalised before 22 April
2007. They requested the Respondent to make available
the necessary
documentation to be signed by the 2
nd
and 3
rd
Applicants.
[24] There is a
memorandum dated 30 March 2007 containing a recommendation that the
signing of the Deed of Sale be held in abeyance.
It asked that the
matter be referred to council to consider rescinding the resolution
of 28 January 1999. The memorandum contained
the signature of one M
J Thithi, the General Manager: Social Development, the Executive
Director: Community and Social Development.
The signature was
brought thereon on 4 April 2007. The City Manager approved the
recommendation. This document served before
the Respondent’s
mayoral committee on 10 May 2007. It adopted the recommendation of
the municipal manager.
[25] On 17 May 2007 a
lively debate occurred among the counsellors. They complained that
the property had not been valued; that
the only public golfing
facility was being lost; that there had been a substantial delay and
that the value of the property was
now worth more than the R30
million. In the end the counsellors unanimously resolved to accept
the recommendations of the municipal
manager.
[26] The Applicants then
appointed one Molefi Litheko, (“Litheko”) a director of Econ
Initiate, Consultants in “business and
related law” to promote
the interests of the Applicants. Litheko put up an affidavit setting
out his efforts in the matter.
Subsequently a report of the
executive mayor was tabled on 17 May 2007. It contained the
recommendations to which I have referred.
[27] The Respondent did
not notify the Applicants of the decision taken at the meeting of 17
May 2007. The reasons therefor are
not contained in the papers.
[28] The 2
nd
Applicant received a letter from the City Manager advising them that
the Respondent had resolved on 17 May 2007 to rescind the
resolution
of 28 January 1999 based on objections contained in a report prepared
by the Community and Social Development Directorate.
The City Manager
recoreded that the matter was closed for discussion. This only
occurred on 12 March 2008.
[29] Litheko made minutes
of the council available on 15 May 2008. The minutes related to a
meeting of the council on 20 September
2007. The extract quoted by
the Applicant indicated that the land previously allocated to Hennie
Lambrecht Architects during 1999
was now available for allocation.
There was mention of the receipt of an application from Growth
Property Group received before
1 October 2005. It was suggested that
the Respondent should finalise that application.
[30] The Applicants
contend that a decision has been made to sell the property to Growth
Property Group. I disagree. The extract
cannot be construed so as to
conclude that a decision has been made to sell. In my judgment this
fact is fatal to the Application.
[31] The Applicants
approached their attorneys. They recorded that the Applicants were
not accepting the repudiation of the sale
agreement; that the
Applicants had learned of the Respondent’s intention to sell the
property to a certain Moroi. Incidentally,
the name of the alleged
purchaser is spelt elsewhere in the papers as Moroe. The Applicants
requested an undertaking and threatened
litigation. The matter
remained quiet with the attorneys until 6 June 2008 when they sprung
into action. According to the Applicant’s
legal representatives,
the Applicants instructed them that the eastern portion (the second
piece of land) had been sold to the
Growth Property Group. Reference
was made to a supplementary affidavit apparently tabled in a special
meeting of the Respondent
on 20 September 2007. They also requested
the Respondent not to proceed with the transfer pending a review
application. This drew
no response.
[32] The Applicants
contend that the sale to Growth Property Group and Mr Moroe caused
damages to them in the amount of R19,97 million.
[33] On 31 July 2007 the
Applicant’s representatives Econ Initiate, threatened to institute
legal proceedings by 3 August 2007.
[34] The Respondent has
taken the point that the Deed of Alienation was not contained in a
written instrument as provided for in
Section 2
of the
Alienation of
Land Act, 68 of 1981
. It has also taken the point that to the extent
that the Applicants rely on an agreement of 1999 any rights flowing
from there
have been extinguished by prescription in terms
Section 11
of the Prescription Act, 68 of 1969.
[35] The Respondent also
contended that when the offer of 22 January 2007 was made to Hennie
Lamprechts Architects there was non
compliance with Section 14 of the
Local Government: Municipal Financial Management Act, 56 of 2003.
The Respondent disputed the
authority of the writer of the letter of
22 January 2007.
[36] The Respondent also
attacked the validity of the sale because the instrument was not
signed within 3 months as set out in the
letter of 22 January 2007.
[37] The Respondent also
disputed the authority of Lambrecht to act for the Trust. The
Respondent’s counsel, Mr Reinders, referred
the Court to extracts
of the trust deed. He argued that the resolution of 28 April 1998
only gave Hennie Lambrechts the authority
to sign documents for and
on behalf of the Trust. He argued that there was a distinction
between contracts, deeds and other documents
as contemplated in
clause 9 of the Trust Deed. In my judgment there is no substance to
the argument. I find that the Seconf Applicant
was authorised to sign
contracts as well.
[38] The Applicants took
issue with the authority of the General Manager: Property and Land
Management. Mr. Danzfuss who appeared
for the Applicants realised
the weakness in the point and correctly, in my view, abandoned the
point.
[39] Mr Danzfuss
submitted that the Applicants have not brought the application solely
to institute a review action. The Applicants,
he argued, were
relying on the contents of paragraph 41.1 and the letter of their
attorney, annexure R. Mr Danzfuss referred the
Court to several
instances in the founding affidavit where reference was made to “the
necessary litigation”. This he argued
was not limited to a review.
Mr Reinders pursued his attack on the purpose behind the
application. He argued that there had been
a considerable period of
delay and no such a review had been instituted by the Applicants.
[40] Mr. Danzfuss
contended in argument that the Applicants required the necessary
interim protection and it was founded on three
grounds. The first
was that the Applicants had a valid contract of sale and intended to
take legal steps for the transfer thereof
in the name of the Trust.
Secondly, Mr. Danzfuss argued, that the Respondent had taken a
decision to sell the property to a third
party and that such conduct
occurred without the requisite
audi
alteram partem.
It was effected secretly thus discriminating against the Applicants.
He argued that the sale to Growth Property Group did not
comply with
Section 14 of the Local Government: Municipal Finance Management Act.
In the third instance, the Applicants contended,
that the decision
of the Respondent was reviewable and that they were entitled to
interim relief pending a review.
[41] The argument, as I
understand it, advanced by the Applicants is that a deed of
alienation need not necessarily exist in one
written document but may
compose of several such documents. Mr Danzfuss argued that the
documents which compose the contract can
be found in the letters
going back to 1998. I pointed out to Mr Danzfuss that the earlier
letters, to which I have made reference,
required of the Applicants
to accept the terms thereof in writing. I asked when the contract
was entered into. Mr Danzfuss submitted
that this occured on 2 April
2007 when Mr Lambrechts accepted the offer on behalf of the Trust.
[42] When it was
suggested that if the agreement was entered into on 2 April 2007 it
would have been hit by the Local Government:
Municipal Finance
Management Act, Mr Danzfuss argued that on a proper construction of
Section 14 it was only the transfer of ownership
as a result of a
sale which was hit by section 14 and that such a transfer had not as
yet occurred.
[43] Section 14 provides
as follows:
“
(1) a municipality may not transfer
ownership as a result of a sale or other transaction or otherwise
permanently dispose of a capital
asset needed to provide the minimum
level of basic municipal services.
(2) a municipality may transfer
ownership or otherwise dispose of a capital asset other than one
contemplated in subsection 1, but
only after the municipal council,
in a meeting open to the public -
(a) has decided on reasonable grounds
that the asset is not needed to provide the minimum level of basic
municipal services; and
(b) has considered the fair market
value of the asset and the economic and community value to be receive
in exchange for the asset.
(3) a decision by a municipal council
that a specific capital asset is not required to provide a minimum
level of basic municipal
service, may not be reversed by the
municipality after that asset has been sold, transferred or otherwise
disposed of.
(4) a municipal council may delegate
to the accounting officer of the municipality its power to make
determinations referred to
in subsection (2)(a)(b) in respect of
movable capital assets below a value determined by the council.
(5) any transfer of ownership of a
capital asset in terms of subsection 2 or 4 must be fair, equitable,
transparent, competitive
and consistent with the supply chain
management policy which the municipality must have and maintain in
terms of section 111.
(6) this section does not apply to
the transfer of the capital asset to another municipality or a
municipal entity or to a national
or provincial organ of state in
circumstances and in respect of categories of assets approved by the
National Treasury, provided
that such transfers are in accordance
with a prescribed framework.”
[44] In order to avoid
the consequences of the Act, Mr Danzfuss was constrained to argue
that the decision to alienate the capital
asset occurred before the
Act came into operation. He argued that the conduct which occurred on
22 January 2007 did not, on a proper
construction of the section,
constitute a disposal. I accept that the conduct of January 2007
does not constitute a transfer.
I doubt very much whether the same
can be said of the offer and acceptance of 2007.
[45] I do not think the
Section lends itself to the meaning given to it by the Applicant.
The purpose behind the Section is to
ensure that public property is
disposed in a manner which is fair and which ensures proper
consideration to the fiscus of a municipality.
[46] It is not in dispute
that the property in question upon which the Bloemfontein Golf Course
is situated is some 109.32 hectares
in extent and that it was valued
in excessive of R40 million. On the Applicants own reckoning they
stand to loose R19.97 million
in respect of the 13 hectares which has
been or is being sold to Growth Property Group and/or Mr Moroe.
[47] If the sale occurred
on 2 April 2007 it would be
prima
facie
hit
by the Act and would either be void or at the least susceptible to a
review. Reliance cannot be placed on the rights acquired
in 1999.
The claim emanating from this transaction has become prescribed.
Section 12(1) of the Prescription Act provides that
prescription
shall commence as soon as a debt is due. A debt is due if it is
immediately claimable by the creditor or, where there
is a debt, in
respect of which, a debtor is under an obligation to perform
immediately.
DELLOITTE
HASKINS & SELLS CONSULTANTS (PTY) LTD v BOWTHORPE HELLERMAN
DEATSCH
[1990] ZASCA 136
;
1991
(1) SA 525
(A) at 532 H
BENSON
& ANOTHER v WALTERS AND OTHERS
1984 (1) SA 73
(A).
[48] In my judgment the
Applicants are not entitled to rely on the contract which came into
being during 1999.
DESAI
NO v DESAI AND OTHERS
[1995] ZASCA 113
;
1996 (1) SA 141.
[49] On either of the
constructions given to the documentation and on the assumption that
the contract can be gleaned from various
letters the, the Application
must fail.
[50] The capacity in
which Mr Lambrechts acted was placed in issue. Lambrechts did not
and could not have made the offer to purchase
the land for the 1
st
Applicant. He was not a Trustee on 24 April 1998. The first and the
second offer he made cannot therefore be attributed to the
Trust.
[51] The Applicants
relied on the doctrine of fictional fulfilment to counter the
Respondent’s defence that the deed of sale had
not been signed
within three months. This defence was only raised in reply. Mr
Reinders urged me not to have regard to the replying
affidavit which
raised new matter because as he argued the case of
SWISSBOROUGH
DIAMOND MINES (PTY) LTD AND OTHERS v GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA AND OTHERS
1999 (2) SA 279
(T) ,prohibited the applicants from so doing.
[52] The Applicants
alleged, in the founding papers, that there had been a delay on the
part of the Respondent which had nothing
to do with them. The
Respondent simply replied that they were not aware of the delays
being referred to. I find that there was
a delay in the sense of
nonfeasance.
[53] I intend, in this
judgment, to have regard to the case put up in reply.
[54] The question of the
onus in relation to fictional fulfilment does not appear to have been
adequately resolved by our Courts.
It was raised thus by Holmes JA
in
SCOTT
AND ANOTHER v POUPARD AND ANOTHER
1971 (2) SA 373
(A) at 379:
“
Furthermore, what must a plaintiff
prove when invoking the doctrine? Must he prove (a) non-fulfilment of
the condition, (b) the
defendant's breach of his duty with intention
to frustrate the fulfilment, and (c) a causal link between (a) and
(b)? Does (c)
involve proof by the plaintiff that, but for (b), the
condition would probably have been fulfilled?”
[55] Christie, in his
erudite
work,
The
Law of Contract in South Africa
,
5
th
Edition, Butterworth’s at page 151 considers that the best answer
is that once the plaintiff has proved (a) and (b) it is for
the
defendant to show, if he can, that the condition would in any event
not have been fulfilled.
[56] It was held in
FERNDALE
INVESTMENTS (PTY) LTD v DICK TRUST (PTY) LTD
1968 (1) SA 392
(A) that deliberate nonfeasance would bring the
doctrine into operation if some positive action by the conditional
debtor was necessary
for the fulfilment of the conditions.
[57] The argument, so it
went, was that the Applicants expected of the Respondent to prepare
the Deed of Sale and having failed
so to do it must be presumed under
the doctrine of fictional fulfilment that the deed of sale was
entered into within the three
month period. Such a sale or disposal
would have been hit by Section 14 of the Municipal Finance Management
Act.
[58] The Applicants were
required to prove on a balance of probabilities that they had (a) a
prima
facie
right, though open to doubt; (b) a well-grounded apprehension of
irreparable harm if the interim relief was not granted and the

ultimate relief is eventually granted; (c) that the balance of
convenience favoured the granting of an interim interdict; and
(d)
that the Applicants had no other satisfactory remedy.
[59] An interim interdict
is discretionary in nature and the requisites must therefore be
judged as a whole.
SETLOGELO
v SETLOGELO
1914 AD 221
;
ERICSEN
MOTORS, (WELKOM) LTD v PROTEA MOTORS WARRENTON
1973 (3) SA 685
(A);
MASUKU
v MINISTER VAN JUSTISIE EN ANDERE
1990 (1) SA 832
(A). It is designed to preserve or restore the
status
quo
pending the final determination of the parties respective rights.
[60] According to
Lambrechts he nominated the First Applicant, the company, as the
purchaser because he was entitled to do so in
terms of the agreement.
This cannot be since the contract of 1999 is a nullity. The 2007
‘contract’ did not permit Lambrechts
to appoint a nominee.
[61] There is no
resolution by the 1
st
Applicant authorising Lambrechts to enter into a deed of alienation
for the immovable property in question. There is also no evidence

that the Trust authorised Lambrechts to nominate the 1
st
Applicant in the stead of the Trust. The provisions of the Trust
Deed and in particular Clause 9.1 provided that the signing powers
in
respect of contracts, deeds and other documents relating to the Trust
matters was to be determined by the Trustees. The Trust
Deed
provides that decisions must be properly minuted and is a
pre-condition to the exercise of signing powers in respect of
contracts,
deeds and other documents.
[62] The minute of the
meeting held on 28 April 1998 only authorised Lambrechts to sign
documents on behalf of the Trust in his
capacity as Trustee and as
their architect. I must agree with Mr Danzfuss that contracts and
deeds are documents. The Second Applicant
was properly authorised to
sign documents, nothing more.
[63] The problem of
course is that there is no written authorisation enabling the 2
nd
Applicant to nominate the First Applicant as the purchaser in the
stead of the Trust. This hernia has several implications for
the 2
nd
and 3
rd
Applicants.
[64] If it is to be
accepted that Lambrechts was properly authorised by the 1
st
Applicant to enter into a deed of alienation for the immovable
property or to accept a nomination, this conduct appears
prima
facie
at odds with his position as a Trustee. After all he must profess
that he was authorised to acquire the property on behalf of the

Trust. But a careful reading of the papers shows that he has not
pinned his flag to the mast on this issue. The first difficulty
with
the proposition is that there would have been an inherent conflict
between Lambrecht, in his capacity as a shareholder of
the 1
st
Applicant, and, in his capacity as a Trustee. He also cannot contend
that he nominated the 1
st
Applicant as the purchaser and that even though the Trust did not
authorise him so to do he has now abandoned the nomination of
the 1
st
Applicant and has instead nominated the Trust. The very essence of
the Trust’s case is that a valid contract was entered into
with the
Respondent. The contract could not have ben simultaneously entered
into with the First Applicant. The other problem
is that the Trust
did not make the offers in 1998. It is difficult to fathom, how it
could have been party to the Respondent’s
acceptance in 1999.
There is no cession of rights evident on the papers. The Trust
cannot rely on the contract which came into
existence when the
Respondents accepted Lambrecht’s offer to purchase. Even if it
could, it would not be able to get past prescription.
[65] Lambrechts cannot
contend in this case that he was the agent of the Trust and I do not
understand him so to contend. See
HOOSEN
AND OTHERS NNO v DEEDAT AND OTHERS
1999 (4) SA 425
SCA
[1999] 4 ALL SA 139
at para [21].
[66] It is trite that the
2
nd
and 3
rd
Applicants were obliged to act jointly. Can it be said though the
resolution of 28 April 1998 that this authorised Lambrechts to
act on
behalf of the Second Applicant?
[67] It must be remebered
that we are dealing with a contract for the sale of immovable
property. In these instances both Trustees
must become parties
thereto. Trusts, unlike a partnership, require that a deed of
alienation of immovable property be signed by
all the Trustees.
TABETHE
AND OTHERS v MTETWA NO AND OTHERS
1978 (1) SA 80
(T).
[68] It was held in
TABETHE
that the failure by all the Trustees to sign the deed of alienation
rendered the contract of no force and effect for want of compliance

with the
Section 2(1)
of the
Alienation of Land Act, 68 of 1981
.
[69] In my judgment I
find that Lambrechts nominated the First Applicant contrary to any
authorisation given to him by the Trust.
The same applies to the
First Applicant. The contract which he says came into existence is a
nullity. Such a contract cannot
be subsequently given life by
contending, in the alternative, that the contract was entered into
between the Trust and the Respondent.
[70] Lambrechts acted in
the interests of the First Applicant and simultaneously also acted in
the interests of the Trust. In my
view he was not entitled so to
act. A Trustee has a duty of utmost good faith toward the Trust and
may not act in a manner
inimical
to its
interests. Lambrechts would have appropriated Trust property to an
entity in which he and Litheko had an interest to the
detriment of
the Trust. There might then have ben a dispute regarding the rights
of the 1
st
Applicant and those of the Trust. This would have given rise to
unnecessary and considerable dispute. The very object of the
Alienation of Land Act would
thereby have been frustrated resulting
in needles litigation. It has been held that the object of the Act
is “on the grounds
of public policy to facilitate proof by
requiring the authority of a purchaser and their agents to be in
writing and so to avoid
needles litigation.”
THORPE
AND OTHERS v TRITTENWEIN AND ANOTHER
2007 (2) SA 172
(SCA) at 178D.
[71] The concession, in
the papers, that the nomination was invalid and the joinder of the
Trust confirms that Lambrechts did not
have authority to enter into a
contract for the Applicants.
[72] Lambrechts cannot
approbate and reprobate. Can it be argued that the letter of 2 April
2007, effectively nominated the Trust
as the purchaser? In my
judgment I find that this cannot be.
[73] The ‘Deed of Sale’
comprising the letters, as contended by Mr Danzfuss, in my judgment
only relate to the acceptance on
2 April 2007. The disposal would
therefore have taken effect, not in 1999 as contended by Mr Danzfuss,
but in 2007. Accordingly,
the Trust would have to show that there
was compliance with section 14 of the Municipal Finance Management
Act. It cannot do so.
[74] There is a further
problem for the trust. Even if I were able to find that the
transaction occurred in 1999 and the provisions
of the Munisipal
Finance Management Act were not applicable, parties to the disposal
or sale of Municipal capital assets were still
required, in terms of
the Constitution, to ensure that the transaction was in accordance
with a system which is fair, equitable,
transparant, competitive and
cost effective.
[75] Accordingly, when
the property was allegedly alienated, on Lambrechts’s version, to
either of the Applicants in 1999, the
Respondent was obliged to
comply with the requirements of Section 217 of the Constitution.
There is no evidence to suggest that
this occurred. The minutes of
the Respondent do not support such a conclusion. On this basis too,
the argument, that the alienation
took place in 1999 cannot assist
any of the Applicants.
[76] This Court cannot
look solely at what occurred in 1999 for purposes of the Municipal
Finance Management Act and ignore what
occurred on 2 April 2007. It
is, with respect, a non sequitur. It must be remembered that the
contract, on the Applicant’s version,
only come into existence when
there was an acceptance. On this reckoning, the provisions of the
Municipal Finance Management Act
would have been applicable.
[77] I am therefore of
the opinion that the applicant does not have a
prima
facie
case. This being the case there would be no point in granting
interim relief.
[78] The further problem
for the Applicants is this. The application by the Growth Property
Group to purchase the piece of land
to the east of the golf course
does not constitute a decision adverse to the Applicants which may be
reviewed. It is common cause
that the property has not yet been
sold. It would therefore be pointless to grant the Applicants
interim relief to institute a
review arising out of the application
by Growth Property Group because a decision thereon has not been
taken. It cannot assist
the Applicants to contend that this may yet
happen.
[79] There is no evidence
on the papers that the Respondent has or intends to sell the land
upon which the Bloemfontein Golf Course
is situated.
[80] As regards the
property on which the Bloemfontein Golf Course is situated there
appears to be no reason to issue an interim
interdict.
[81] There has been a
considerable delay in launching these proceedings. It must be
remembered that by Litheko’s own threat of
31 July 2007, the Trust
threatened to move an application as early as 3 August 2007 at a time
when it was already clear that the
Respondent was not prepared to
sign the contract within the three months period stipulated in the
letter of 22 January 2007. Close
on a year later they were more or
less in the same position. Another year has now since passed and the
Applicants do not have
any significant evidence more than that which
they had one year ago. As I indicated earlier there can be no review
of the application
by Growth Property Group to purchase the property
to the east of the Country Club because no decision has been made.
[82] The delay herein is
in my view of such a nature that a Court, have regard to all the
circumstances, should not exercise the
discretion, which it may have,
in the Applicant’s favour.
See
CHOPRA
v AVALON CINEMAS SA (PTY) LTD AND ANOTHER
1974 (1) SA 469D
at 472:
“
There is such a thing as the
tyranny of litigation, and a court of law should not allow a party to
drag out proceedings unduly.
In this case we are considering an
application for an interdict pendente lite which, from its very
nature, requires the maximum
expedition on the part of an applicant."
AN WYK, J., in Juta & Co.
Ltd. v Legal and Financial Publishing Co. (Pty.) Ltd.
,
1969 (4) SA 443
(C) at page 445 of the judgment.
[83] It is also in the
interests of the public that there be certainty in regard to the
status of the public land in question.
It seems to me improper to
permit a state of affairs to continue where public land is
effectively out of circulation to private
investors. The public is
best served by the certainty about the capital assets owned by the
Respondent. To grant the Applicant’s
an interim interdict
pendente
lite
would, in my view, also not serve the interests of justice.
[84] There is the spectre
of a review being launched on the basis that the Respondent, as an
Organ of State, has not acted fairly
towards, whichever party, may be
entitled to assert the contract. But that is not the case which the
Applicant have prosecuted
to obtain the interim relief herein.
[85] I would,
consequently, having regard to all the facts herein, dismiss the
application.
[86] I therefore grant an
order dismissing the application with costs.
_____________
NXUSANI, AJ
On
behalf of the Applicant: Adv. F. W. A. Danzfuss
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On
behalf of the Respondents: Adv. S. J. Reinders
Instructed by:
EG Cooper Majiedt Inc
BLOEMFONTEIN
JN/em