SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 2026-048423
In the matter between:
SAND-VET WATER USERS ASSOCIATION APPLICANT
And
PIETER HENDRIK SCHALK BEZUIDENHOUT MULLER FIRST RESPONDENT
[ID No. 6[…]]
ANGELIQUE JUSTINE PRINSLOO NO SECOND RESPONDENT
[ID No. 8[…]
WYNAND LABUSCHAGNE NO THIRD RESPONDENT
[ID No. 8[…]]
Neutral citation: Sand-Vet Water Users Association v Muller and Others
(2026-048423) [2026] ZAFSHC 400 (19 August 2026)
Coram: VAN ZYL J
Heard: 6 August 2026
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by e -mail and released to SAFLII. The date and time
for hand-down is deemed to be 15h00 on 19 August 2026.
Summary: Application has become moot before filing of the replying
affidavit – applicant persists with filing of replying affidavit – inordinate lengthy
replying affidavit – application dismissed with costs.
2
ORDER
The application is dismissed with costs, such costs to include the costs of counsel
on Scale B.
JUDGMENT
Van Zyl J
[1] In this matter the applicant initially applied for an order that the immovable
property known and described as Portion [ …] of the Farm G […] R[… ] 7[… ],
Registration Division Ventersburg, Free State Province, measuring 59.7985
hectares, held by deed of transfer T21[ …] (‘the property’) be declared specially
executable in terms of rule 46A.
[2] At the time of the launching of the application, the property was registered in
the name of the first respondent , and the order was being sought based on a
judgment debt in the amount of R333 616.38, which the applicant obtained by
default against the first respondent in the Magistrate’s Court on 22 April 2021. The
applicant is a water management institution in terms of the provisions of s 1 of the
National Water Act 36 of 1998 (‘ the NWA’). The indebtedness of the first
respondent resulted from outstanding water use charges owed to the applicant i n
terms of the provisions of s 57(2) of the NWA , water use charge s that are due to
the Minister of Water and Sanitation in terms of s 58 of the NWA, as well as water
research fund levies in terms of the provisions of s 11(2)(b) of the Water Research
Act 34 of 1971, together with interest on the above water use charges and levies.
Outstanding water use charges, and the interest thereon, are a charge on the land
to which the water use relates and which is recoverable from the current owner of
the land in terms of s 60 of the NWA.
[3] The second and third respondents were cited merely because of the possible
interest they may have in the relief sought, since the second respondent and her
husband are residing on the property. The second and third respondent s have
been cited in their capacity as trustees of the Prins R Trus t, IT538/2010(B) (‘the
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Trust’). The trustees of the Trust changed during the events relevant to this
application and I will therefore, for the sake of efficacy, interchangeably refer to the
relevant trustees at a specific time as the Trust or, when appropriate, as the
second and third respondents specifically.
[4] The application was served upon the first respondent by means of edictal
citation by way of substituted service in terms of a court order dated 19 February
2026. The first respondent did not oppose the application. The second and third
respondents opposed the application on the grounds set out in the answering
affidavit, which I do not propose to repeat for purposes hereof.
[5] The parties are ad idem that the application has become moot as the
property is no longer registered in the name of the first respondent. The costs of
the application, however, remain in dispute between the parties.
[6] The applicant is seeking an order that the second and third respondents b e
ordered to pay the costs of the application as between attorney and client. The
second and third respondents are seeking an order that the application be
dismissed with costs, such costs to include costs of counsel on scale B.
[7] The parties are in agreement that since the application has become moot,
the application is not to proceed. This principle was set out in Tilsa Projects (Pty)
Ltd v Department of Public Works and Infrastructure and Others
1 where the
following was held:
‘It is generally accepted that courts do not determine academic questions or grant orders
that will have no practical effect. In Voltex (Pty) Ltd v Venkatas and Others the Court held
that mootness does not deprive the Court of jurisdiction, but it may affect the justiciability
of the matter and that an application that will have not practical effect may be dismissed
on that ground alone.’
2
[8] Mr Saunders, on behalf of the applicant, conceded that since the application
has become moot, it may be dismissed.
has become moot, it may be dismissed.
1 Tilsa Projects (Pty) Ltd v Department of Public Works and Infrastructure and Others (9756/21P)
[2025] ZAKZPHC 85 (15 September 2025).
2 Ibid para 21.
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[9] The usual principle regarding costs is that costs should follow the result.
Should the application be dismissed, the usual order would therefore be that the
applicant should pay the costs of the application. Mr Els, on behalf of the second
and third respondents, consequently requested an order accordingly.
[10] As mentioned earlier, the applicant, however, contends that the second and
third respondents be ordered to pay the costs of the application on a punitive
scale.
[11] The applicant correctly states in its heads of argument that a punitive cost s
order may be granted in extraordinary circumstances and if special considerations
arise out of the conduct of a party or the circumstances that gave rise to the
application. A punitive cost s order would ensure that the part y seeking such an
order is not put out of pocket and is thus not to be granted lightly.
3 Such special or
extraordinary circumstances include when a party was dishonest or fraudulent , or
was actuated by malice or has been guilty of gross misconduct either in the
transaction under enquiry or in the conduct of the case.4
[12] The submissions made by the applicant in its heads of argument in support
of its contention that the second and third respondents should be ordered to pay
the costs of the application and further on a punitive scale, are the following:
’26. The sole reason why the application has become moot is the fact that the second
and third respondents, secretly after they received the notice of the application,
transferred the property from the name of the First Respondent into their own names. This
is a transparent stratagem to avoid payment of water use charges and to frustrate the
Applicant’s efforts to collect water use charges on [the property].
27. The stratagem is highlighted by the fact that neither the second respondent nor the
representatives of the Prins A Trust ever informed the Applicant, either before the
representatives of the Prins A Trust ever informed the Applicant, either before the
application or thereafter that [the property] was sold on 24 October 2020, by the Prins A
Trust, sold to Alidasync (Pty) Ltd.
3 Rigney v BMW Financial Services (96247/15) [2017] ZAGPPHC 330 (5 June 2017) para 13.
4 Van Dyk v Conradie and Another 1963 (2) SA 413 (CPD) at 418E–F.
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28. This fact is also conveniently absent from the answering affidavit of the second
respondent. It is evident from the absence of this fact that the Second and Third
Respondents are not candid with the Court.
29. The way in which the Second and Third Respondents have conducted the litigation
and the fact that the versions in the affidavits under case number 888/2022 and the
current answering affidavit differ should also weigh against the Second and Third
Respondents.’
[13] I do not intend repeating all the facts contained in the application. I am only
going to deal with the facts which I deem relevant to the determination of an
appropriate costs order.
The answering affidavit
[14] The application was launched on 3 March 2026. The answering affidavit was
deposed to on 22 May 2026. I will now deal with the relevant allegations contained
in the answering affidavit.
[15] On 20 May 2019, at Virginia, the Trust concluded a written agreement of sale
with the first respondent in terms whereof the first respondent sold the property to
the Trust for an amount of R4 000 000.00. The Trust paid the full purchase price.
A copy of the deed of sale is attached to the founding affidavit as annexure ‘OA9’.
[16] As a result of the first respondent’s failure to sign all documents necessary to
transfer the property into the name of the Trust, the Trust launched an application
in this court under case number 888/2022 for an order compelling the first
respondent to sign the required documents. On 14 April 2022, such an order was
granted in favour of the Trust, and a copy of the order is attached to the founding
affidavit as annexure ‘OA3’. Although the Registrar of Deeds was cited as second
respondent in the said application, no relief was sought or granted against the
Registrar of Deeds.
[17] As a result of the order, a caveat was noted against the property. The caveat
under reference number I1920/2022 appears on a Windeed search and
under reference number I1920/2022 appears on a Windeed search and
specifically refers to the case number of 888/2022. A copy of the Windeed search
is attached to the founding affidavit as annexure ‘OA2’.
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[18] Despite the fact that the Trust obtained the order to compel against the f irst
respondent, transfer of the property into the name of the Trust could not be
effected since the first respondent had to pay a substantial amount to SARS
before transfer could take place.
[19] Very importantly, the following is stated at paragraph 15.5 of the answering
affidavit:
‘As a result of delays on the part of the First Respondent, transfer of the property has not
yet been effected into the name of the Trust, but steps are being taken to effect transfer of
the property into the name of the Trust as soon as possible.’ (My emphasis.)
The replying affidavit
[20] I will now deal with the relevant allegations by the applicant contained in the
replying affidavit, which affidavit was filed on 10 June 2026.
[21] On 26 May 2026 the property was transported into the name of the Trust. A
copy of the deed of transfer is attached to the replying affidavit as ‘R2’.
[22] On the same day the property was transported into the name of Alidasync
(Pty) Ltd (‘the company’). A copy of the deed of transfer is attached to the replying
affidavit as ‘R3’.
[23] The deponent to the answering affidavit, Ms Prinsloo, the second
respondent, is also the only director of the company. Ms Prinsloo did not take the
court into her confidence and has not been candid with the court.
[24] Before the bringing of the application the applicant`s attorney addressed
multiple enquiries to the then conveyancer of the Trust regarding what is
happening in respect of the transport of the property into the name of the trustees
of the Trust. On 31 August 2021, the applicant`s attorney received a letter from the
then attorney of the Trust wherein it was confirmed that the Trust bought the
property from the first respondent and was already occupying the property.
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[25] In the answering affidavit , the Trust mentions the sale agreement concluded
between the first respondent and the Trust in terms whereof the property was sold
to the Trust for an amount of R4 000 000.00. There is no mention in the answering
affidavit about the second agreement which was concluded on 24 October 2020 in
terms of which the purchase price was reduced to an amount of R600 000.00,
which agreement was attached to the founding affidavit under case number
888/2022 as ‘F6’. There is no explanation in the answering affidavit about the
reasons for the second agreement or for the fact that the price was reduced
drastically.
[26] The answering affidavit contains no explanation as to what happened
between the date upon which the court order to compel under case number
888/2022 was obtained up until the date when this application was served on the
Trust.
[27] There is no allegation in the answering affidavit that the Trust had previously
sold the property to the company and that the Trust was in the process of
transferring the property to the company. This is despite the fact that the trustees
of the Trust granted a power of attorney to the conveyancer that dealt with the
transfer of the property to the company on 24 April 2026, a mere 28 days before
the replying affidavit was filed.
[28] There is also no mention in the answering affidavit that the power of attorney
that was granted by the first respondent for the transfer of the property into the
name of the Trust was granted as far back as 22 April 2022.
[29] There is also no explanation why it took four years after the power of
attorney was given to grant transfer on 22 April 2022 until the date upon which the
transfer indeed occurred.
[30] It is not mentioned in the answering affidavit that it was an express term in
clause 16.4 of the first sale agreement that the first respondent would be liable for
all monies due to the applicant for water use charges up until the date of
all monies due to the applicant for water use charges up until the date of
occupation of the property, whil st the second agreement makes provision in
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clause 5.4 thereof that the Trust will be liable to pay the water use charges to the
applicant.
[31] On 5 September 2025 the attorneys of the Trust advised the attorney of the
applicant in a letter that ‘ . . . s eller, however, resides in Botswana and can only
attend to the signature of the necessary documents after the 15th instant . . .’
[32] The applicant`s attorney, Mr Austen ‘later spoke telephonically to the
secretary of the transferring attorney, enquiring about the transfer process of the
property, and the secretary of the transferring attorney undertook to ask the
conveyancer to return Mr Austen`s call . Up until the signing of this affidavit, Mr
Austen has not received any returning telephone calls from the conveyancer. If the
conveyancer was candid [in] the correspondence and returned Mr Austen`s call
and explained the position and how far the process is, the applicant would not
have brought this application at all.’
[33] A copy of the title deed in terms of which the property was transferred into
the name of the first respondent was obtained. No caveat is registered on the
deed of transfer . The court order issued under case number 888/2022 did not
order that the registrar of deeds register a caveat over the property.
[34] The Trust had a court order since 14 April 2022 and has done nothing to
transfer the property into the name of the trustees before the filing of the present
application.
[35] The fact that the property was transferred into the name of the company
immediately after the second and third respondents obtained transfer of the
property into their names was not disclosed in the answering affidavit. The second
and third respondents did not take the court into their confidence, which was done
for ulterior purposes.
Consideration of the allegations and submissions
[36] The applicant has been aware that the property was sold to the Trust and
that it was being occupied by the Trust since 2021 already. The default judgment
that it was being occupied by the Trust since 2021 already. The default judgment
against the first respondent was also obtained on 22 April 2021 already. The
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applicant launched the present application only during March 2026. Mr Saunders
submitted that there were negotiations between the parties in the meantime and
that the applicant, therefore, does not stand to be penalised for not having brought
this application earlier. However, the applicant did so at its own peril. Further,
according to the replying affidavit, the last update the applicant received regarding
the transaction was on 5 September 2025, when the applicant`s attorney
specifically advised that the first respondent will attend to the signature of the
necessary documents ‘after the 15
th instant’. This was an indication that transfer of
the property was imminent. Although the allegation is made that the applicant`s
attorney ‘later’ directed a telephonic enquiry to the secretary of the transferring
attorney, it is not stated when this was and no further steps were taken by or on
behalf of the applicant when no returning telephone call was received by the
applicant`s attorney from the transporting attorney, but for the application that was
launched only six months later. The order for edictal citation by substituted service
was also only obtained on 19 February 2026, which application could have been
launched at an earlier stage.
[37] It consequently appears that the applicant dragged its feet and now attempts
to put the blame on the second and third respondents.
[38] From a reading of the papers as a whole, also the application papers filed
under case number 888/2022 attached to the replying papers, it is evident that
there w ere numerous disputes between the first respondent and the trustees of
the Trust at the time, which led to the delay in the transferral of the property into
the name of the Trust.
[39] Although the power of attorney for the transfer of the property into the name
of the company was only signed on 24 April 2026, the sale agreement between
the parties was already concluded on 24 October 2024, as evident from the deed
the parties was already concluded on 24 October 2024, as evident from the deed
of transfer attached to the replying affidavit as ‘R3’. The sale was not concluded as
part of some or other stratagem by the Trust , as alleged by the applicant . In any
event, in my view , the applicant had no entitlement or right to be informed as to
the fact that the property was to be sold on from the Trust to the company.
Whether the property was to be transferred into the name of the Trust or into the
name of the company is irrelevant, as it has the same impact upon the applicant
10
and the default judgment it previously obtained. The applicant still has its remedies
against the current owner.
[40] I can also find nothing untoward in the fact that the Trust did not mention the
second sale agreement concluded between the first respondent and the Trust.
From the deed of transfer attached to the replying affidavit as annexure ‘R2’, it is
evident that the transfer in fact took place in terms of the first sale agreement of 20
May 2019 and for the agreed purchase price of R 4 000 000.00. The second sale
agreement was therefore irrelevant.
[41] The applicant was forewarned in the answering affidavit that although there
have been delays previously, steps are being taken to effect transfer of the
property into the name of the Trusts as soon as possible.
[42] At the time of the filing of the replying affidavit, the applicant had already
become aware of the transfer of the property. Notwithstanding the knowledge that
the application had become moot, the applicant not only chose to persist with the
filing of the replying affidavit but filed a replying affidavit of inordinate length.
[43] In the totality of the above facts and findings, I find that there is no basis
upon which the second and third respondents are to be mulcted in costs of the
application, let alone on a punitive scale. The costs should follow the outcome. In
my view, the applicant is to be ordered to pay the costs of the application, with
counsel`s fees on Scale B.
[44] Because of the findings made, I deem it unnecessary to deal with the issue
regarding the relevant court from which this application was instituted. The
registration, or not, of a caveat has also become irrelevant.
Order
[45] The following order is made:
The application is dismissed with costs, such costs to include the costs of counsel
on Scale B.
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C VAN ZYL
JUDGE OF THE HIGH COURT
Appearances
For the Applicant: JHA Saunders
Instructed by: Hill, McHardy & Herbst, Bloemfontein
For the Respondent: J Els
Instructed by: EG Cooper Majiedt Inc, Bloemfontein