IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1} REPORTABLE: Nt)
(2} OF INTEREST TO 0TH ER JUDGES: ~
(3} REVISED: it)
16 MAY 2025
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N URE DATE
In the matter between:
KGOTSO LODGE (PTY) LTD
and
THE ACTING DEPUTY DIRECTOR: LAND MATTERS
DEPARTMENT OF WATER & SANITATION
THE MINISTER OF WATER AND SANITATION
EDWIN RICHARD VAN HEERDEN N.0.
(In his capacity as the trustee of the EVH Trust) Case No: 51056/2021
Applicant
First Respondent
Second Respondent
Third Respondent
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This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties I their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handing down is deemed to be 16 May 2025.
JUDGMENT
RETIEF J
[1] The applicant applies for leave to appeal to the Full Court of this Division
against the whole judgment and order of the 12 November 2024 in which this Court
dismissed its administrative review application with costs.
[2] The nub of the grounds raised in the application for leave to appeal is the
Court's finding that the impugned decision of the 3 September 2021 was not a
decision taken by the first respondent, on the evidence, as against its duly submitted
formal applications for both a lease agreement and/or application for a caretaker
and grazing agreement [applications] in respect of the remaining extent of the farm
Ferdinantsrust and remaining extent of the Farm Langtouw [property] under cover
of letter 12 March 2020 by Erasmus De Klerk Incorporated [De Klerk], Mr Van Der
Walt's attorney of record.
[3] The nub of the applicant's ground is that, on the admitted and common cause
facts and, on the evidence, the impugned decision dated the 3 September 2021 was
a decision taken in respect of the applicant's applications, justifying the relief it
sought.
[4] However simplistic the applicant's reasoning and argument appear to be, in
truth having regard to all the evidence it was not. Discord between some of the
admitted facts and the evidence was apparent. Therefore, in justifying the relief
sought, the Court considered all the evidence in its totality. The result of which was
clear, as reasoned , that the informal application for a renewal of a lease agreement
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by Mr Van Der Walt in his personal capacity in terms of paragraph 6.2 of the written
lease agreement between himself and the Department of Water and Sanitation was
the only application to renew a lease over the property which lawfully could have
been applied for or requested . Furthermore , the applicant's applications under
consideration related to formal submitted applications , absent an existing lease
agreement. None of the applicants' formal applications as relied on, related to a
request for renewal of an existing lease.
[5] The impugned decision dated the 30 September 2021 does not contain any
indication that it relates to or deals with the applicant's formal applications . In fact,
the impugned decision in the body thereof refers to an outcome of a decision taken
in respect of "-a request to renew the agreement- " culminated with a decision
pertaining to the request was a request by the first respondent that De Klerk's client
must vacate the property. As reasoned in the judgment such a request to vacate
was catered for in the lease agreement between Mr Van Der Walt, as the lessee
and only authorised occupier of the property. In consequence the finding that the
impugned decision was not a definite final decision relating to the applicant's formal
applications to enter into a lease and obtain a grazing licence over the property,
notwithstanding the pleaded facts on the evidence, was clear and, as such could
not justify the relief sought.
[6] The Court accepts that the applicant appreciated the disconnect in that, at
the date of the hearing, it requested the Court to make the inference that the
impugned decision related to the formal applications vis-a-vis the applicant, inter
alia, in the absence of any other written decision apparent from the filed record and,
now in this application also relies on a ground stating that the Court erred by not
holistically interpreting the decision letter of the 3 September 2021 with due regard
to the context and the circumstances upon its coming into existence . In fact, the
Court did just that. The applicant is reminded that because its applications were not
the only applications , formal or otherwise, that were duly submitted by De Klerk
pertaining to the property involving the Van Der Walt family's interest, another set
of admitted facts was open to consider. Therefore , having regard to the decision, it
is reasonable to accept that Mr van Der Walt 's informal application letter in February
2020 should be considered . It too, was not placed in dispute. In considering the
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context and al the circumstances the impugned decision's existence appears to
have arose in respect of Mr Van Der Walt's request for renewal as he, was the only
applicant who could lawfully have made a request to renew the lease as referred to
in the impugned decision and who, in terms of the lease agreement could be asked
to vacate the property due to a decision not to renew the lease agreement. The
impugned decision holistically or otherwise does not translate into nor justify a
finding that it is as against the applicant's formal applications.
[7] Therefore, having reconsidered the judgment as against the grounds raised
and argued, the applicant has not met the threshold of section 17 of the Superior
Courts Act, 10 of 2013 and this Court is of the opinion that the appeal will not have
a reasonable prospect of success. In consequence the application must fail.
[8] The following order:
1. The application is dismissed with costs, including the costs of two
Counsel if so employed, taxed on scale C for Senior Counsel and scale
B in respect of Junior Counsel.
Appearances:
For the Applicant:
Instructed by attorneys: Adv N Fourie Judge of the High Court
Gauteng Division
Cell: 072 519 4436
Email: natasha@chamberssa .co.za
Erasmus De Klerk Incorporated
Mr S Erasmus
Tel: 011 678 1988
Email: jaco@edk .co.za
Ref:
For the 1st & 2nd Respondent: Adv ZZ Matebese SC
Cell: 012 943 5053
Instructed by attorneys :
For the 3rd Respondent
Instructed by attorneys :
Date of hearing:
Date of judgment: Email: matebesesec@counseltsa .co.za
Adv S Jozana
Cell: 012 943 5115
Email: advjozana3@counseltsa.co .za
Office of the State Attorney, Pretoria
Ms N Qongqo
Cell: 012 309 1578
Email: naqongqo@justice .gov.za
Adv AP Ellis
Joubert Attorneys
Tel: 012 342 9895
Email: jaco@legaedge .co.za
17 April 2025
16 May 2025 5