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[2024] ZAFSHC 210
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Kopano Uitkyk Farming Enterprise (Pty) Limited v National Government of the Republic of South Africa and Others (3805/2022) [2024] ZAFSHC 210 (25 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no.
3805/2022
In
the matter between:
KOPANO
UITKYK FARMING ENTERPRISE
(PTY)
LIMITED
[Registration
number:
2013[…]
]
and
THE
NATIONAL GOVERNMENT OF THE
REPUBLIC
OF SOUTH AFRICA
[Through
its Department of Agriculture,
Land
Reform and Rural Development,
previously
known as the Department of
Rural
Development and Land Reform]
THE
MINISTER OF AGRICULTURE,
LAND
REFORM AND RURAL DEVELOPMENT
MEMBER
OF THE EXECUTIVE COUNCIL,
MEC
FOR THE FREE STATE DPARTMENT
OF
AGRICULTURE AND RURAL DEVELOPMENT
THE
CHIEF DIRECTOR/ACTING CHIEF DIRECTOR
IN
THE DEPARTMENT OF AGRICULTURE AND
RURAL
DEVELOPMENT
MACHABEDI
DINAH KOMETSI N.O.
[In
her capacity as Trustee of the
KOPANO
UITKYK
NO. 2 TRUST
]
PHATEDI
JOHANNES MOKONE N.O.
[In
his capacity as a Trustee of the
KOPANO
UITKYK
NO. 2 TRUST
]
PHAKELA
BEN MAPHAKISA N.O.
[In
his capacity as a Trustee of the
KOPANO
UITKYK
NO. 2 TRUST
]
NAMEDI
FRANS MELATO N.O.
[In
his capacity as a Trustee of the
KOPANO
UITKYK
NO. 2 TRUST
]
TEBELLO
JOHANNES MOTSOANI N.O.
[In
his capacity as a Trustee of the
KOPANO
UITKYK
NO. 2 TRUST
]
Applicant
First
Respondent
Second
Respondent
Third
Respondent
Fourth
Respondent
Fifth
Respondent
Sixth
Respondent
Seventh
Respondent
Eighth
Respondent
Ninth
Respondent
HEARD
ON:
20 JUNE 2024
DELIVERED
ON:
25 JUNE 2024
JUDGMENT
BY:
MANYE, AJ
[1]
The Applicant brought an urgent application before Van Zyl, J heard
on the 26
th
August 2022 in which the Applicant sought the
following orders:
1.1
That the Court dispensed with the forms, service and time periods
provided for in the Uniform Rules
of Court, specifically in Uniform
Rule 6(12), and disposes of the matter as such and plays in such a
manner and in accordance with
such procedure as to it seem meet, and
that this application be considered to be one of urgency.
1.2
That the Respondents pending the finalization of the action under
case number
1993/2022
in the above Honourable Court, be;
1.2.1
Interdicted from, (i) evicting the Applicant from; (ii) Intervening
with the possession exercised
by the Applicant over, and (iii)
Interfering with the possession exercised by the Applicant in the
running of its commercial farming
enterprise over, the immovable
property, in the district of Parys in the Free State Province, being:
Farms and portions stated
in paragraph 2.1.1 to 2.1.18 therein
referred to as “
DALRRD Farms
”.
[2]
The Applicant further sought an order that the Respondent be
entitled, on a monthly
basis, to inspect the DALRRD Farms, in order
to ensure that the Applicant is indeed conducting a commercial
farming enterprise
(including the management of the herd of cattle)
on the DALRRD Farms, and to ensure to the extent applicable that such
equipment
as owned by DALRRD and that is utilized, is in fact
utilized responsibly in terms of the accepted good farming practices.
[3]
Further the Applicant sought cost orders against Respondents jointly
and severally,
the one paying the other to be absolved.
[4]
It is so that on the 16
th
March 2023 Van Zyl, J delivered judgment in which the Applicant’s
urgent application was removed from the roll and the Applicant
was
ordered to pay the costs of the application including the costs of
two counsel.
[1]
[5]
The Applicant re-enrolled the application so removed from the roll on
the 16
th
March 2023 to be heard before this Court on the
20
th
June 2024 together with further application items of
the Uniform Rule 6(5)(e) in which the following orders were sought:
5.1
That the Applicant be granted leave to serve and file
the
further
founding affidavit
[2]
together with annexures thereto, attached to the Notice of Motion for
the filing of further affidavits, and such is deemed to be
served and
filed herewith;
5.2
The First to Fourth Respondents are granted leave to serve and file
their further answering affidavit
together with annexures thereto, if
any, in opposition to the Notice of Motion for the filing of a
further affidavit, and such
is deemed to be served and filed
herewith.
5.3
The Fifth to Ninth Respondents are granted leave to serve and file
their further answering affidavit
together with annexures thereto, if
any, in opposition to the Notice of Motion for the filing of a
further affidavit, and such
is deemed to be served and filed
herewith;
5.4
The Applicant is granted leave to serve and file a further replying
affidavit together with annexures
thereto, if any, in response to the
further answering affidavit of the First to the Fourth Respondents
and/or further answering
affidavit of the Fifth to Ninth Respondents,
and such is deemed to be served and filed herewith;
5.5
The Applicant is to pay the costs of this application to allow
further affidavits unless this application
is opposed by one or more
of the Respondents, in which case such Respondents opposing are to
pay the cost of this application,
alternatively the cost of this
application are to be reserved for determination in the main
application.
[6]
For clarity, it is important to highlight that what is referred to as
the main application
is in fact the urgent application under the same
case number that served before Van Zyl, J which was removed from the
roll on the
16
th
March 2023, re-enrolled to this date 20
th
June 2024 on the same papers without any supplementary affidavits
and/or amended Notice of Motion.
[7]
At the commencement of the proceedings the Applicant’s legal
representative
indicated to the Court that Rule 6(5)(e) must be dealt
with first, to allow and admit the further founding affidavit to the
main
application referred to above (being the urgent application
removed from the roll on the 16
th
March 2023).
[8]
The Applicant’s legal representatives’ submission was to
the effect that
there existed exceptional circumstances which
necessitate further filing of a further founding affidavit subject to
this application
under Rule 6(5)(e). Applicant’s counsel
further submit that there is no prejudice to the Respondents, whether
the First
to Fourth Respondents or the Fifth to Ninth Respondents,
since the relief specifically provides that their respective
opposition
also be accepted as further answering affidavits.
Further that the Respondents are therefore given reasonable
opportunity
to address all the allegations in the further founding
affidavit, pertaining to the subsequent facts set out in the further
founding
affidavit as is evident from the Notice of Motion for leave
to file a further affidavit.
[9]
Rule 6 of the Rules of Court provides:
“
(1)
Every application must be brought on notice of motion supported by an
affidavit as to the
facts upon which the application relies on for
relief.
(2)
…
(3)
…
(4)
…
(5)(d)
Any person opposing the grant of an order sought in the Notice of
Motion shall –
(i)
…
(ii)
Within fifteen (15) days of notifying the applicant of his
intention to oppose the application, deliver his answering affidavit,
if any, together with the relevant documents; and
(iii)
…
(e)
within ten (10) days of the service upon him of
the affidavit and
documents referred to in subparagraph (ii) of paragraph (d) of
subrule (5), the applicant may deliver a replying
affidavit.
The Court may, in its discretion permit filing of further affidavits.
[10]
In
Hanno
Trading CC v JR 209 Investments (Pty) Ltd and another
[3]
it was stated that, it is so that a litigant in civil proceedings has
the option of approaching a Court for relief on application
as
opposed to an action. Should a litigant decide to proceed by way of
application, Rule 6 of the Uniform Rules of Court applies.
This
rule sets out the sequence and timing for filing of affidavits by the
respective parties. An advantage inherent to application
proceedings,
even if opposed, is that it can lead to a speedy and efficient
adjudication and resolution of the dispute between
parties. Unlike
actions, in application proceedings the affidavit takes the place,
not only of pleadings, but also of essential
evidence that should be
led at trial. It is accepted that the affidavits are
limited
to three sets
.
It follows thus that great care must be taken to fully set out the
case of the party on whose behalf an affidavit is filed.
It
is therefore not surprising that the Rule 6(5)(e) provides that
further affidavits may only be allowed at the discretion of the
Court.
[11]
In
Porterstraat
69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd
[4]
it was noted that the Court must take the following facts into
consideration in determining whether or not to allow a further
affidavit:
(i)
The reason why the evidence was not led timeously;
(ii)
The degree of materiality of evidence;
(iii)
The possibility that it may have been shaped to “relief
the pinch of the shoe”;
(iv)
The balance of prejudice, vis the prejudice to the Plaintiff
if the application is refused and prejudice to the Defendant if it is
granted.
(v)
The stage which the particular litigation has reached.
Where judgment has been reserved after all evidence has been heard
and, before judgment is delivered, Plaintiff asks for leave to lead
further evidence, it may well be that he or she will have a
greater
burden because of factors such as the increased possibility of
prejudice to the Defendant, the greater need for finality,
and the
undesirability of a reconsideration of the whole case, and perhaps
also convenience of the Court.
(vi)
The “healing balm” of an appropriate order as to
costs;
(vii)
The general need for finality in judicial proceedings.
(viii)
Appropriateness, or otherwise, in all circumstances, of
visiting the fault of the attorney upon the head of his client.”
[12]
I differ with the submission of the Applicant’s counsel that
there is no prejudice to be
suffered by the Respondent as a result of
this application to allow further filing of a further founding
affidavit. This
simply cannot be true. It is clear that
the Applicant’s conduct is to revive the main application
removed from the
roll on the 16
th
March 2023 without
supplementary papers.
[13]
The Applicant’s conduct amounts to nothing else but
multi-duplication of actions between
the parties under the following
case numbers
4076/2021
,
1993/2022
,
223/2023
,
3493/2023
including the application currently before this
court
3805/2022
.
[14]
The essence of this application places this Court in a difficult
position as the Applicant does
not seek a final relief in this
application. The Court has to determine the issues herein as
responded to by the Respondents where
a glaring dispute of fact
arises. It is undisputed that the rights of the parties are a matter
pending for determination before
the full Court of this division.
[15]
In view of the case law stated above in relation to the request to
exercise the discretion to
allow further founding affidavit, further
answering affidavit and further replying affidavits as submitted by
the Applicant’s
counsel, it goes without saying that the Court
can only do so if there are exceptional circumstances.
[16]
I find no exceptional circumstances for the exercise of the
discretion to allow affidavits above
as there are pending litigious
matters between the parties. As such I exercise my discretion
in not allowing the further
filing of further founding affidavits in
casu
.
In
the result, the following order is made:
1.
The application in terms of Rule 6(5)(e) is dismissed.
2.
The main interim application is removed from the roll.
3.
The Applicant is ordered to pay the costs of this application
including the costs
of two counsel where so employed.
T.L.
MANYE, AJ
APPEARANCES:
On
behalf of the Applicant
Advocate
G V Meijers
Advocate
N Lebona
Instructed
by:
J.C
Uys Attorneys C/O McIntyre Van Der Post
BLOEMFONTEIN
On
behalf of the 1
st
to 4
th
Respondents
Advocate
T Seneke, SC
Instructed
by:
State
Attorney, Free State
BLOEMFONTEIN
On
behalf of the 5
th
to 9
th
Respondents
Advocate
M Ramaili, SC
Advocate
N Mosia
Advocate
V Vilakazi
Instructed
by:
Jam
Jam Attorneys C/O Rampai Attorneys
BLOEMFONTEIN
[1]
Record,
p. 62
[2]
emphasis
[3]
2012
JOL 29725
(SCA) at para [10]
[4]
2000
(4) SA 598
C