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[2024] ZALMPPHC 8
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Van Der Walt and Another v RZT Zelppy 4230 (Pty) Ltd and Others (2033/2021) [2024] ZALMPPHC 8 (30 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 2033/2021
REPORTABLE:
YES
/NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED
Dat:
30/01/2024
In
the matter
between:
SUSANNA
CATHARINA
VAN DER WALT (JNR)
1
ST
APPLICANT
SUSSANA
CATHARINA
VAN
DER
WALT
(SNR)
2
ND
APPLICANT
and
RZT
ZELPPY
4230
(PTY) LTD
1
ST
RESPONDENT
(For
its
winding-up
in terms of section
81(1)(d)
of the
Companies Act 71 of
2008
,
as
amended)
JUERGENS
JOHANNES
VAN
DER WALT
2
ND
RESPONDENT
NATIUS
VAN
DER
WALT
3
RD
RESPONDENT
JURGENS
JOHANNES
VAN
DERR
WALT,
NO
4
TH
RESPONDENT
NATIUS
VAN
DERR WALT, NO
5
TH
RESPONDENT
FREDERIL
JAKOBUS
EKSTEEN N.O
6
TH
RESPONDENT
KONRAD
STOOP,
NO
7
TH
RESPONDENT
_BG
HOLDINGS (PTY) LTD
8
TH
RESPONDENT
REGISTRAR
OF DEEDS, POLOKWANE
9
TH
RESPONDENT
MASTER
OF
THE
HIGH COURT,
PRETORIA
10
TH
RESPONDENT
CLOUDED
MOUTANS PROPERTIES CC
11
TH
RESPONDENT
FIRSTRAND
BANK LIMITED
12
TH
RESPONDENT
DWM
BOERDERRY
(PTY)
LTD
13
TH
RESPONDENT
JUDGMENT
This
judgment is delivered electronically by way of dispatching same to
email addresses of the parties' legal representatives and
publishing
same on SAFLII. The
date
of delivery
of this
judgment
is
deemed
to
be 30 January
2024.
SIKHWARI
AJ
[1]
This
matter
was
brought
by
way
of
an
application
in
terms
of
a
notice
of
motion.
The nature of
the dispute is that of a declaratory order relating to
ownership
of a certain
shares in the first respondent and the ownership of
immovable
property
known as
Remaining
Extent
of the Farm
Schilpadpan
271
in
Alldays
in the
Limpopo Province ("immovable property"). The application is
opposed. The
court is
requested to decide whether to refer the matter to the
hearing
of oral
evidence
or
trial or
adjudicate
the matter
on papers.
[2]
The
law
relating
to
referral
to
-
dispute
of
fact
is
regulated
in
terms
of
Rule
6
(5) (g) of
the uniform
rules
of
the High Court
of
South
Africa
which
states
that:
"Where
an application
cannot properly be decided on affidavit the court may
dismiss
the
application
or
make
such
as
to
it
seems
meet
with
a
view to
ensuring
a
just
and expeditious decision. In particular, but without affecting
the generality
of
the
foregoing,
it
may
direct
that
oral
evidence be
heard on specified issues with
a
view of
resolving any dispute of fact and to that end may order any deponent
to appear personally or grant leave for him or any
other person to be
subpoenaed to appear and be examined
and
cross-examined
as
a
witness
or it may refer the matter to
trial
with
appropriate directions
as
to
pleadings or definition of
issues,
or
otherwise."
[3]
In the
leading
case of
Plascon-Evans
Paints
Ltd v Van Riebeeck
Paints
(Pty)
Ltd
[1984] ZASCA 51
;
[1984]
2 All SA 366
;
1984 (3) SA 623
AD,
it
was authoritatively held
that:
"
It
is correct that
,
where in
proceedings on motion disputes of fact have
arisen
on
the
affidavits
,
a
final
order
,
whether
it
be
an
interdict
or
some or some
other form of relief, may be granted if those facts averred in the
applicant's affidavits which have been admitted
by the respondent,
together
with
the facts alleged by the respondent
,
justify
such an order.
The
power
of the court to give such final relief on the papers before it
is,
however,
not
confined
to such
a
situation.
In certain
instances
the denial
by
respondent of
a
fact
alleged by the applicant
may not be
such as to
raise
a
real,
genuine
or
bona
fide
dispute
of
fact
(see
in
this
regard
Room
Hire
Co.
(Pty)
Ltd
v
Jeppe
Street
Mansions
(Pty)
Ltd
1949
(3)
SA
1155
(T) at pp
1163-5;
Da
Malta v
Otto.
NO
1972
(30 SA
585
(A)
at p 882 D-H).
"If
in such
a
case
the respondent has not availed himself of his right to apply for the
deponents concerned to be called for cross-examination
under
Rule
6(5)(g)
of
the
Uniform
Rules
of
Court
and
the
court
is satisfied
as
to
the
inherent
credibility
of
the
applicant's
factual
averment, it
may
proceed
on the
basis of the
correctness
thereof
and include
this fact
among those upon which it determines which he seeks (see eg.
Rikhoto
v East Rand Administration Board
1983 (4) SA 278
(W) at p 283 E-H).
Moreover,
there may be exceptions to this general rule,
as,
for
example, where the a/legations or denials of the respondent are
so
far
fetched or clearly untrainable that the Court is justified in
rejecting them merely on the papers.
[4]
In the
case
of
Sofiantini
v Mould
1956 (4) SA 150
I at page 154E-F,
Price J
held that:
"
A
bare denial of applicant's material averments cannot be regarded
as
sufficient
to
defeat
applicant's
right
to
secure
relief
by
motion
proceedings
in
appropriate
cases.
Enough
must be stated by respondent to enable the Court to conduct
a
preliminary
examination...
and to ascertain whether the denials are not fictitious intended to
delay the hearing." (or for
some
other
purpose)
"
The
respondent
'
s
affidavits
must
at
least
disclose
that
are
material
issues
in
which there is
a
bona
fide dispute of fact capable of being decided only after viva voce
evidence has been heard."
"If
by mere denial in general terms a respondent can defeat or delay an
applicant
who
comes
to
Court
on
motion,
then
the
motion
proceedings
are
worthless,
for
a
respondent
can
always
defeat
or
delay
a
petitioner by
such
a
device.
It is necessary to make a robust, common sense approach
to dispute
on
motion
as
otherwise
the
effective
functioning
of the Court
can be hamstrung and circumvented by the most simple and blatant
stratagem.
The
Court must not hesitate
to decide an
issue of fact on affidavit merely because it may be difficult to do
so.
Justice
can be defeated
or seriously
impeded
and delayed
by an
over-fastidious approach to a dispute of fact."
[5]
More
recently,
in
the
case
of
Wightman
t/a
JW
Construction
v
Headfour
(Pty) Ltd And Another
(2008]
(3) SA
371,
Heher
JA held that:
"
A
real
,
genuine
and
bona
fide
dispute
of
fact
exist
only
where
the
court is
satisfied that the party who purports to raise the dispute has in his
affidavit seriously and unambiguously addressed the
fact said to be
disputed.
There
will
of
course
be
instances
where
a
bare
denial
meets the
requirement
because
there
is
no
other
way
open
to
the
disputing
party and nothing more can therefore be expected of him. But even
that may
not
be
sufficient
if
the
fact
averred
lies
purely
within
the
knowledge of
the averring party and no basis is laid for disputing the veracity or
accuracy of the averment. If the facts alleged
are such that the
disputing party
must
necessarily
possess
knowledge
of
them
and
be
able
to provide an
answer (or countervailing evidence) if they be not true or accurate
but, instead of doing so, rests his
case
on
a
bare or
ambiguous denial the court will generally have difficulty in finding
that the test is satisfied. I
say
'
generally'
because factual averments seldom stand apart from
broader
matrix
of
circumstances
all
of
which
needs
to
be
borne
in
mind
when
arriving
at
a
decision.
A
litigant
may
not
necessarily
recognize
or
understand
the
nuances
of
a bare
or
general
denial
as against
a
real
attempt
to
grapple
with
all
relevant
factual
a/legations
made by the other party.
[6]
The
provisions
of
Rule
6(5)(g)
of
the
uniform
rules
of
this
court
do
empower
this
court
to
refer
the
matter
to
oral
evidence
or
trial,
whatever
the
case
may be, if
there is such an application by the applicant or
mero
motu
in
deserving circumstances. The dispute of fact herein falls within the
ambit of the said rule
6(5)(g).
[7]
This
court
is of the view that there is are several material disputes of fact
regarding
the
sale
between
the
first
respondent
and
the Trust
regarding
the
sale
of immovable
property herein. The authority
of the second
applicant,
second
respondent
and
fourth
respondent
to
sell
the
immovable
property
to
the
first
respondent
is challenged
by the third, fourth and fifth respondents.
There
is
a dispute regarding the resolution authorizing the aforesaid sale
transaction.
The
sale
is said
to be void
on the
basis
that
it
was
authorised
by
the
trustees
of
the Trust. There is an issue regarding the resignation of one
trustee
as
to
whether
such
resignation
has
material
effect
in
that
it
had
not
been
communicated
to the Master
of the High Court at the time of the taking of
the
resolution.
Some
of the material witnesses are no longer alive, some of the
documents
are no longer
in existence.
[8]
The parties
will enjoy the
benefits of the discovery process in terms of rule 35
and
/ or the
right
to reconstruct
some of the missing documents and / or calling
expert
witnesses
to fill
the missing
gaps
if the matters
herein
are referred
to
trial,
as
opposed
to oral
evidence.
The
trial
scope
is
wider
and
in
a
case
like
this
it
will
be
in
the
interests
of
justice
for
the
matters
to
be
referred
to
trial
for full
and
complete
adjudication
of
all
the
issues
in
order
to
avoid
a
piecemeal
process which may lead to endless litigations.
[9]
In
my
view
,
the
matter
must
be
referred
to
trial
as
there
are
a
lot
of
issues which
are overlapping and have a material impact in the entire application.
referral
to
trial
will
assist
the
parties
to
adjudicate
over
thew
matter
in
its entirety
as
opposed
to
referral
to
oral
evidence
in
a
limited
issue
in
dispute. The
above disputes of fact were unforeseeable at the institution of the
proceedings,
and
they
are
genuine
dispute
of
fact.
I
intend
to
order
that
costs of this
hearing for referral to trial or oral evidence to be in the course
for adjudication
by the trial
court at the end of the trial.
[10]
Accordingly
,
the
following
order
is made:
1.
That
the
main
application
and
counter-application
herein
are
hereby
referred to trial.
2.
Applicants
'
notice
of motion
shall stand as
a simple
summons.
3.
Applicants
are ordered
to a
declaration
on
or before
29
February
2024.
4.
Respondents
are ordered to file their respective plea on or before 31 March
2
024,
and whereafter the uniform rules of the High Court of South Africa
will apply.
5.
That costs of
the main application and counter-application and costs of the hearing
of the application for referral to oral evidence
are reserved for
d
e
t
ermination
by
the
trial court
at
the end
of
the
trial.
MS
SIKHWARI
ACTING
JUDGE OF THE HIGH
COURT OF
SOUTH
AFRICA, LIMPOPO
DVISION
POLOKWANE
APPEARANCES:
F
o
r
A
pplicant
Adv
Abraham Louw SC
In
s
tr
ucted
by
Krugel
Heinsen Inc
c/o
De Bruin Oberholzer
For
R
espondent
Adv
SS Green
I
ns
t
ructed
by
Deon
Retief Attorneys
c/o
Weidemann
Attorneys
D
a
te
of Hearing
14
December
2023
D
a
te
of Judgment
30
January
2024