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[2008] ZAWCHC 305
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Soundprops (236) (Pty) Ltd v Lewis and Another (14889/2008) [2008] ZAWCHC 305 (24 November 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL OIVISION)
CASE
NUMBER:
14889/2008
date
:
24
NOVEMBER 2008
In
the matter between:
1.
SOUNDPROPS
(236) (PTY) LIMITED
1
st
APPLICANT
2.
PETER
COOPER N.O
2
nd
APPLICANT
3.
GESENA
CHRISTINA COOPER NO.
3
rd
APPLICANT
and
1.
justin
rory Mckenzie lewis
(And
all that hold title under him)
1
st
RESPONDENT
2.
THEEWATERSKLOOF
LOCAL
MUNICIPALITY 2
nd
RESPONDENT
JUDGMENT
FOURIE,
J
:
This
is the judgment in two applications which I heard on 13 November
2008, Firstly there is an application for a declaratory
order and
ancillary relief, brought as a matter of urgency under case number
11292/2003 by Justin Rory McKenzie Lewis ("Lewis")
in his
capacity as trustee of the Draaiberg Trust and in his personal
capacity. The third applicant is Lewis' co-trustee
of the
Draaiberg Trust, while his wife is the fourth applicant.
The
respondents are Peter Cooper ("Cooper") and his
co-trustees of the Helderfontein Farming Trust ("Helderfontein
Trust"). I will refer to this application as the main
application. Secondly, there is an application under case number
14889/2008, brought by Soundprops 236 (Pty) Limited and Cooper and
his co-trustees of the Helderfontein Trust, against Lewis and
all
that hold title under him, for their eviction from the farm
Draaiberg. I will refer to this application as the eviction
application.
At
the hearing of the applications, Mr Lewis appeared in person and
Advocate De Waal on behalf of the respondents in the main
application and applicants in the eviction application. At the
commencement of the hearing, I ordered that due to their
inter-relationship,
Et would not only be convenient, but also in the
interests of justice, to hear the two applications together. I also
refused
an application by Lewis for a postponement of both
applications. I stated that reasons for this decision would be
furnished in
this judgment.
Briefly
the reasons are as follows: The postponement was sought pending the
finalisation of a corruption investigation relating
to a liquidated
close corporation of which Lewis had been a member. The events
giving rise to this investigation took place some
eight years before
the events relevant to the issues in the present applications. The
issues to be decided in the present applications,
do not appear to
be relevant or linked to the issues in the corruption investigation,
as the latter pertains to the close corporation's
affairs. In
addition, the main application was launched as one of urgency by
applicants
h
well knowing that the corruption investigation has not yet been
finalised. In view thereof, applicants in the main application,
who
are
dominus
litis,
can
surely not be heard to say that the main application should now be
postponed, merely on the basis of the possibility that
there may be
a link between the issues in the present applications and those
covered by the corruption proceedings.
In
any event, according to Lewis, the corruption investigation will
only be completed by the end of this year and Cooper, according
to
Lewis, will then be given an opportunity to settle with Lewis,
failing which he will be added to what was termed "the
list of
suspects". In my view, atl of this can be done in due course
once the investigation is complete and there is no
cogent reason why
the present applications should not proceed I accordingly refused
the request for a postponement of the two
appEications.
The
papers in these two applications are voluminous, together with the
heads of argument they exceed 700 pages. Due to a heavy
case
schedule with resultant time constraints, I do not intend referring
in detail to the allegations of the respective parties.
I assume
that any person interested in this judgment, is fully conversant
with the contents of the parties' affidavits and annexures
filed in
both applications. I, therefore, proceed to summarise my reasons for
the orders which I intend to make.
Dealing
firstly with the main application, the crucial issue to be decided
is the validity of a written agreement, styled "Heads
of
Agreement". The main relief sought by applicants in the main
application, is an order declaring the heads of agreement
to be null
and void and of no force or effect. The heads of agreement is the
product of a settlement reached by the parties during
the course of
mediation proceedings, which were instituted with a view to resolve
disputes between them. The heads of agreement
were entered into
between Cooper and Lewis in their representative capacities and they
agreed,
inter
afia,
as
follows:
1.
Both parties are acting in their capacities as trustees for the
time being of the Helderfontein Trust. Cooper representing
the Class
A beneficiaries and Lewis the Class B beneficiaries.
2. The
trustees agreed to create a new trust for the 8 Class beneficiaries.
3. The
new trust will have the following assets and liabilities:
3.1
A
claim of R791 000 against the Jolly Good Trust and/or J M Lewis in
his personal capacity.
3.2
An
obligation to pay an amount of R791 000 to the Heiderfontein Trust
on or before 17 June 2008.
4
Upon payment of the amount of R791 000, the new trust will be
entitled to acquire 100% of the shareholding in the company
Soundprops 236 (Pty) limited for R100,00.
5.
Should the new trust not make payment of the amount aforesaid, the
Helderfontein Trust shall be entitled to immediately place
the
shares of Soundprops 236 (Pty) Limited or the property owned by
Soundprops 236 (Pty) Limited on the market. The proceeds
of the sale
will be dealt with as follows.
5.1. An
amount of R791 000 will be a first charge against the proceeds of
the sale.
5.2. The
trust (Helderfontein) will be entitled to subtract as a second
charge, the value of any capital gains obligation that
it may incur.
5.3. The
balance of the proceeds of the sale, after the deduction of the
amounts in 5.1 and 5.2 above, writ be split in equal
shares by the
Helderfontein Trust and the newly created trust.
8. Lewis
shall, upon the creation of the new trust, resign as trustee of the
Helderfontein Trust and as manager of same on 17
June 2007. (I
should add that the parties are
ad
idem
that
the date should read 17 June 2008).
9. The
parties agree that their heads of agreement afore-mentioned, will be
encompassed in a comprehensive agreement to be finalised
amongst the
parties, but until such time as a comprehensive agreement is signed
by both parties, these heads of agreement will
remain in force an
effect.
11.
The parties agree that on 17 June 2008 a reconciliation will be made
of the fruit receipts outstanding in respect of Draaiberg,
which
amounts will be paid over by the pack house to the new trust.''
In
their founding papers, applicants attack the heads of agreement on
two main grounds. Firstly, that Lewis was induced to enter
into the
heads of agreement on the strength of a misrepresentation or a
non-disclosure by Cooper. It is alleged that Cooper failed
to
disclose to Lewis that Soundprops was not unencumbered at the time
of the conclusion of the heads of agreement, but that it
was
indebted to the Helderfontein Trust in an amount of R807 444. It
does appear from applicants' founding affidavit that Lewis
was aware
of the existence of approximately R670 000 of this indebtedness, but
he says that he was not informed of the balance
owing by Soundprops.
I should add that Lewis alleges that he only discovered th+â
existence of this liability on 17 June 2008
when draft financial
statements of Soundprops were supplied to him by respondents'
attorneys.
Secondly,
applicants contend that at the conclusion of the heads of agreement,
Lewis and Cooper, acted
ultra
vires
the
Helderfontein trust deed, by failing to consider the interests of
minor beneficiaries of the trust, particularly as required
by Clause
21.5 of the relevant deed of trust.
The
allegation by Lewis that applicants, represented by Lewis, were
induced to conclude the heads of agreement on the strength
of a
misrepresentation or a non-disclosure of this
nature
has,
in
my view, not been established In addition, I agree with the
submission of Mr De Waal that even if applicants were induced to
enter into the heads of agreement as alleged, such misrepresentation
of non-disclosure was not material and accordingly legally
irrelevant.
A
non-disclosure of the nature upon which applicants rely, can only be
regarded as such if Lewis was unaware of the extent of
Soundprops'
liability as at 17 June 2008. However, in paragraphs 14 to 17 of the
written submissions dated 6 March 2008, prepared
by Cooper for the
mediation, a copy of which was served on Lewis, a full disclosure of
the loan obligations of Soundprops to
the Helderfonte=p Trust is
made. It is not disputed that Lewis received his copy on 7 March
2008, i.e. more than three months
before 17 June 2008. it further
appears from the papers that the loans were initially granted by one
of Cooper's trusts for the
purpose of providing working capital for
the parties' farming venture, details of which loans were known to
Lewis.
The
misrepresentation, if there was one, would in any event have been
legally irrelevant. This is so, as it could not have caused
applicants any prejudice. Clause 4 of the heads of agreement
provides that upon payment of the amount of R791 000 by the new
trust, i.e. the Draaiberg Trust, it would be entitled to acquire
100% of the shareholding in Soundprops for a nominal sum of
R100,00.
3t appears from the papers that the intention of the parties was
that upon payment of this amount, the Draaiberg Trust
would have
acquired the shares and loan accounts in Soundprops for R100,00.
This is borne out by the terms of a draft comprehensive
agreement
accepted and signed by Lewis, which provides, in Clause 6.2,3, for
the delivery of a deed of cession in respect of
the loan account,
together with delivery of the shares in Soundprops.
In
a letter of respondents' attorneys dated 17 June 2008, Lewis was
expressly advised that the shares and loan accounts in Soundprops
woul'i be transferred to the Draaiberg Trust, it follows that if the
Draaiberg Trust had performed its obligation by paying the
amount of
R791 000, it would have been entitled to exercise its option in
terms of Clause 4 of the heads of agreement, thereby
acquiring the
shares in Soundprops, as well as the loan account obligation due to
Helderfontein Trust by Soundprops. This means
that the Draaiberg
Trust would have become the creditor of the debt.
The
conclusion is that any misrepresentation in this regard could not
have caused applicants, and in particular the Draaiberg
Trust, any
prejudice Put differently, the misrepresentation would not have been
material and, therefore, would not have justified
the rescission of
the heads of agreement by applicants. Materiality in this context
relates to the importance of a misrepresentation
or non-disclosure.
Here it would not have been material as Draaiberg Trust would have
become the creditor of the debt owing by
Soundprops.
It
follows from the aforesaid that there is, in my view, no merit in
the first ground relied upon by applicants in substantiation
of
their alleged entitlement to have cancelled the heads of agreement.
To this I should add that during the course of argument,
Lewis
expanded on the grounds upon which applicants rely in their papers
for avoiding the heads of agreements. Although the additional
grounds are not fully covered in the papers of applicants in the
main application, I will deal with same.
Firstly,
Lewis questioned the allegation in respondents' papers, namely that
Cooper holds all the issued shares in Soundprops
in his capacity as
trustee and nominee of the Helderfontein Trust. He argued that
applicants in fact owned 52% of the shareholding
in Soundprops. For
this argument, Lewis relied on allegations made by him in
applicants' replying affidavit to the effect that
by virtue of
financial contributions made into Soundprops to match Cooper's
investments, the Lewis family has a legal right to
52% of the
shareholding in Soundprops. It is, however, cJear from these
allegations that even if same are correct, the Lewis
family will
have no more than a personal right to claim delivery of the shares
from Cooper or the Helderfontein Trust on whose
behalf Cooper holds
all the issued shares in Soundprops.
The
extended argument of Lewis was that in these circumstances, the
respondents, represented by Cooper, had no right to conclude
the
heads of agreement on the basis that upon payment of the amount of
R791 000 by the Draaiberg Trust, the full shareholding
in Soundprops
would be transferred to the Draaiberg Trust.
in
my
opinion, this submission is factually and lec,s'ly unsound. The fact
of the matter is that Cooper is the registered owner of
the shares
which he holds as nominee for the Helderfontein Trust. This would
entitle him or the Helderfontein Trust to dispose
thereof. On the
other hand, Lewis, or the applicants, are not the owners of the
shares in Soundprops, but, as already indicated,
may only have a
personal right to acquire same.
Finally
in this regard, even if Cooper and/or the Helderfontein Trust were
not the owners of the shares in Soundprops, they would
still be
legally entitled to conclude an agreement in terms of which they
undertook to deliver the shares in Soundprops to the
Draaiberg
Trust. An analogy is to be found in the law of sale, where a
non-owner may sell the property of another, as long as
he or she is
able to deliver the property to the purchaser when the obligation to
deliver arises.
Secondly,
Lewis argued that respondents are precluded from enforcing the heads
of agreement, by virtue of their breach of contract
in regard to the
fruit income dealt with in Clause 11 thereof. Put differently,
applicants contend that they are entitled to
rely on this alleged
breach of contract to avoid the consequences of the heads of
agreement. In this regard, Mr De Waal pointed
out that this
allegation of a breach of contract is inconsistent with the basis
upon which applicants maintain that they cancelled
the heads of
agreement, i.e. by virtue of a misrepresentation or non-disclosure
on the part of Cooper. Be that as it may, it
is in any event clear
to me that upon a proper construction of the heads of agreement, it
cannot be argued, as Lewis did, that
payment of the fruit income had
to be made to the Draaiberg Trust, prior to the Draaiberg Trust
being obliged to pay the sum
of R791 000 to the Helderfontein Trust.
It is, in my view, clear from a reading of the document, that no
such condition was included
and that Clause 11 only provides that on
17 June 2008, a reconciliation would have to be made in this regard,
whereafter payment
to the Draaiberg Trust would take place. It
follows, as explained by Cooper in his answering affidavit, that the
fruit proceeds
would have been payable after payment of the amount
of R791 000 by the Draaiberg Trust to the Helderfontein Trust.
This
brings me to applicants' contention that at the conclusion of the
heads of agreement, Lewis and Cooper acted
ultra
vires
the
Helderfontein Trust Deed, by failing to consider the interests of
minor beneficiaries. As mentioned previously in this regard,
applicants rely on the provisions of Clause 21.5 of the
Helderfontein Trust Deed. This clause requires that the trust should
continue to administer the capital to which minor beneficiaries are
entitled until they turn 25. What the clause requires, is
that if,
at the termination of the trust, the beneficiaries are under the age
o
f
25 years, the capital shall continue to be held in trust on their
behalf on the terms and conditions of the trust deed. It follows
that Clause 21.5 only finds application upon termination of the
Helderfontein Trust.
It
is common cause that this trust had not been terminated nor is its
termination envisaged in the heads of agreement. All that
happened,
is that the Class B beneficiaries, i.e. the Lewis beneficiaries,
were transferred from the Helderfontein Trust to the
Draaiberg
Trust. A comparison of the two trust deeds shows that they are
virtually identical and that the Draaiberg Trust
Deed deals with the
capital payable to the beneficiaries on the same terms and
conditions as the Helderfontein Trust Deed. As
explained in the
affidavits in the main application, the setting up of a separate
trust for Lewis and his family, was the whole
purpose of the
exercise. It is clear that in the process the rights of minor
beneficiaries were considered, as they were especially
provided for
in the Draaiberg Trust Deed. It follows, in my opinion, that there
is no merit in the second basis upon which applicants
rely for
avoiding the provisions of the heads of agreement.
I
now turn to the eviction application. In his answering affidavit,
Lewis made it clear that his defence to the eviction application
is
that the heads of agreement are unenforceable From this it would
follow that in thp event of the main application failing,
the
eviction application should succeed. In argument, however, Lewis
extended the basis of the defence to the eviction application
by,
firstly, if I understood him correctly, claiming an entitlement to
occupy the Draaiberg Farm by virtue of his, or his family's,
entitlement to 52% of the shareholding in Soundprops.
For
the sake of clarity, I should mention that the Draaiberg Farm is
registered in the name of Soundprops. I have already dealt
with the
contention of Lewis regarding the ownership of the Soundprops
shares. As I have already found, at best for Lewis, he
and/or his
family, may have a personal right to claim transfer of a certain
percentage of Soundprops
1
shares (this being an issue on which I express no firm view), but
that does not provide him with a right of ownership of the
shares.
Even
if the Lewis family owned 52% of the shares in Soundprops, I still
fail to see how that would entitle them to occupy Draaiberg.
i,
therefore,
fail to appreciate how the alleged entitlement of the Lewis family
to shares in Soundprops, may constitute a defence
to the eviction
application brought by,
inter
alia,
Soundprops
as the registered owner of Draaiberg.
'Secondly,
Lewis submitted that he is entitled to occupy Draaiberg by virtue of
the fact that he has lived on the farm for a number
of years, in
terms of a right to lifelong residence granted to him under his
employment contract. He says that this lifelong
residence has all
along been one of his conditions of employment, which were only
reduced to writing on 16 August 2007. It appears
from the written
employment contract, that on 16 August 2007, Lewis, acting in a dual
capacity, namely on behalf of the Helderfontein
Trust as employer,
and in his personal capacity as employee, concluded a written
agreement in terms of which he was appointed
as the general manager
for the farms, Helderfontein and Draaiberg.
Clause
5.2.1 of the employment contract deals with "huisvesting"
and provides as follows:
"Free
housing in Draaiberg homestead - lifelong."
In
paragraph 9.8 of his founding affidavit in the main application,
Lewis explained as to how the employment contract came about:
"I
point out that this contract is merely a confirmation of the oral
terms of the contract which were required by the auditors
of the
Export Accreditation Agencies to be set out in writing during the
2007 financial year. Although I signed the contract,
both on behalf
of the trust and as employee, at that stage I had been working in
the terms set out in the employment contract
since 1995. The
contract sets out the terms of my agreement with the Helderfontein
Trust and my understanding with Cooper in
this regard."
To
this Cooper responded as follows in his answering affidavit
in
the main application:
"88.
Each and every allegation herein contained is denied. I
n
particular
I deny that:
88.1
The employment contract that Lewis has attached is, according to
Lewis, merely a confirmation of the oral terms of his employment.
I
have never before seen this agreement and note that the agreement is
signed by Lewis in his capacity as trustee and employee.
The
signature of Lewis alone in his capacity as trustee cannot bind the
trust and he is not authorised by the trust deed. The
effect is that
the contract is void or voidable.
88.2
I attach as
PC14
my
letter of 2 August 2007 to Lewis. This letter was sent to Lewis two
weeks before he purported to conclude an employment agreement
with
himself. I submit that the content of paragraph 5 of my letter is
significant in that at the very least I recorded the material
terms
of Lewis' terms of employment as I understood it.
88.3
It is quite apparent from the content of JL5 to the founding
affidavit, that Lewis acted in utter disregard of the position,
as I
understood it, when he purported to record the terms of his
employment. It is clear from the attachment that the purported
terms
of Lewis' employment is not as set out in the contract
88.4
In any event I have made enquiries with the auditors of the Export
Accreditation Agencies, in order to see whether a copy
of Lewis'
written employment contract was ever provided to them. According to
their records, they do not have a copy of any such
contract. In the
circumstances the agreement seems to be a recent and convenient
fabrication. As a result of time constraints,
my attorneys have been
unable to arrange for an affidavit confirming the above. I do
r
however, believe the information to be true and correct."
From
the aforesaid, it appears that there is a dispute of fact regarding
the terms of the employment of Lewis and his alledged
right to
occupy the Draaiberg residence pursuant thereto. On reflection, i do
no believe that this dispute of fact precludes
the final
determination of the eviction application. The reason for this is to
be found in clause 8 of the heads of agreement,
which provides as
follows:
"Lewis
shall upon the creation of the new trust, resign as trustee of the
Helderfontein Trust and as manager of same on 17
June 2007."
(As I mentioned previously, this date should read 17 June 2008).
It
is clear from this clause, that the intention of the parties, as at
17 June 2008, was that Lewis would no longer be employed
by the
Helderfontein Trust as manager, with the result that he would not
have been entitled to occupy Draaiberg under any employment
contract
with this trust. As from 17 June 2008, Lewis ceased to be a
beneficiary of the Helderfontein Trust and could also not
claim any
right of occupation of Draaiberg
in
that
capacity. What was envisaged in the heads of agreement, is that the
new trust, the Draaiberg Trust, would acquire the entire
equity
in
Soundprops
and,
in
so
doing, it would take control of Draaiberg, provided that the
Draaiberg Trust settled the indebtedness of R791 000 to the
Helderfonl.em Trust on or before 17 June 2008. In such event, it was
envisaged that Lewis and his family would occupy Draaiberg
until 17
June 2008, whereafter they, through the Draaiberg Trust, would
become the owners of Draaiberg and have the right to
occupy same.
The
Draaiberg Trust, as I have mentioned, failed to pay the said sum to
the Helderfontein Trust, with the result that it forfeited
its
option to acquire the equity in Soundprops, as well as the right to
become the owner of the Draaiberg farm. It follows, in
my view, that
after this date for payment had passed without payment of the said
amount being made to the Helderfontein Trust,
any right which Lewis
had to occupy Draaiberg, had terminated.
It
is clear to me that ft was envisaged in Clause 5 of the heads of
agreement, that Lewis and his family would not remain on Draaiberg
after 17 June 2008, if the money was not paid to the Helderfontein
Trust by then. This clause provides that if the new trust
faifed to
pay this sum by 17 June 2008, the Helderfontein Trust would be
allowed to sell Draaiberg. In view of the aforesaid,
I conclude that
after the date for payment had passed, without any payment being
made to the Helderfontein Trust, Lewis and his
family haJ no lawful
right to continue their occupation of Draaiberg.
The
respondents do not dispute that the procedural requirements for an
eviction application, as laid down in the Prevention of
Illegal
Eviction from and Unlawful Occupation of Land Act 19/1988 ("PIE"),
have been complied with. 3 am also satisfied
that applicants have
the necessary
locus
standi
as
owner, i.e. the 1
st
applicant, or as the person in charge of Draaiberg, i.e. the
Helderfontein Trust, to bring (his application. As submitted
by
Mr De Waal, Lewis, whose occupation of Draaiberg had changed at
midnight on 17 June 2008 from being lawful to unlawful,
is entitled
to rely on PIE in certain circumstances. Section 4(6) of PIE states
that if an unlawful occupier has occupied the
land in question for
less than six months at the time when the proceedings are initiated,
a court may grant an order for eviction
if it is of the opinion that
It is just and equitable to do so after considering atf the relevant
circumstances, including the
right and needs of the elderly,
children, disabled persons and households headed by women.
Lewis
had been an unlawful occupier for less than six months at the time
when the eviction application was launched, In regard
to the
evidential onus in an application of this nature, the following was
said in
Ndlovu
v Nqcobo
:
Bekker
& Another v Jika
"003(1) SA 113 (SCA) at paragraph 19:
"Another
material consideration is that of the evidential onus.
Provided
the procedural
requirements
have been met, the owner is entitled to approach the court on the
basis of ownership and the respondent's unlawful
occupation. Unless
the occupier opposes and discloses circumstances relevant to the
eviction order, the owner, in principle,
will be entitled to an
order for eviction.
Relevant
circumstances are nearly without fail facts within the exclusive
knowledge of the
occupier
and
it cannot be expected of an owner to negative in advance facts not
known to him and not in issue between the parties. Whether
the
ultimate onus will be on the owner or the occupier, we need not now
decide.
1
'
In
the affidavits opposing the eviction application, Lewis does not
disclose any circumstances relevant to the eviction order,
other
than to attack the validity of the heads of agreement. As mentioned
previously, he did in argument, raise further defences
regarding the
merits of the eviction application, which defences I have already
dealt with. In particular, no grounds have been
put forward by Lewis
regarding the factors mentioned in section 4(6) of PIE. Lewis did,
:
'.
general, point to the fact that he has been residing on the farm for
a number of years, but apart from still residing on the
farm, he is
no longer involved in the farming operations.
It
follows, in my view, that no valid defence has been raised by Lewis
as the unlawful occupier against the granting of the eviction
application. I accordingly conclude that in terms of section 4(8) of
PIE, applicants are entitled to an eviction order I
should add
that it is sad to see that the business relationship between Cooper
and Lewis, which had covered a substantial number
of years, should
come to such an acrimonious end. However, having found the heads of
agreement to be valid and enforceable, it
seems to me to be just and
equitable to enforce the agreement of the parties, including their
intention, that failing payment
of the sum of R791 000 on 17 June
2008, Lewis and those holding title under him, would not be entitled
to reside on Draaiberg.
I
am afso required, in terms of section 4(8} of PIE, to determine a
just and equitable date for the vacation of the property.
In Part 8
of the notice of motion, an order is sought that the farm be vacated
within 48 hours of the granting of an eviction
order, or
alternatively upon such date as the Court may deem just and
equitable. In my view, a substantially longer period than
48 hours
should be granted to Lewis and his family to vacate Draaiberg.
In
this
regard it should be borne in mind that the farm has not yet been
sold by the Helderfontein Trust, with the result that same
is not
immediately required for use or occupation by a prospective
purchaser. The applicants have also not advanced any reasons
why a
reasonable period of time should not be allowed.
In
the circumstances I believe that it would be just and equitable to
order that the farm be vacated by not later than 31 January
2009.
This ought to provide sufficient time for Lewis and those who hold
title under him, to make the necessary alternative arrangements.
Finally,
with regard to costs, the respondents in the main application and
the applicants in the eviction application are
the
successful parties. As such they are entitled to their costs of
suit. In the result the following orders are made:
Case
number 11292/2008
:
The
application is dismissed with costs.
Case
number 14889/2008
:
1(a)
The first respondent and all those who hold title under him, is/are
ordered to vacate the property known as Portion 1 of
the farm
Draaiberg, number 459 in the Division of Caledon, Western Cape, 19
hectares in extent, on or before 31 January 2009.
(b)
The sheriff of this court is directed and authorised to evict first
respondent and all those who hold title under him on 1
February
2009, if first respondent and all those who hold title under him,
has/have not vacated the said farm by this date.
2.
The first respondent is ordered to pay applicants' costs suit.
FOURIE, J