REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3)
REPORTABLE: ¥€SINO CASE NQ: HCAA 21/2026
HCAA 22/2026
Court a quo CASE NQ: 2026-040134
OF INTEREST TO THE JUDGES: ¥€SINO
REVISED.~/NO
PILLAY J
SIGNATURE . DATE 31 AUGUST 2026
In the matter between:
SEBENZA AGRI INVESTMENTS(PTY)L TD
V
NDF(PTY)L TD
CHRISTOPHER RAYMOND RAY N.O
KYLENE WEYERS N.O
Delivered 31 August 2026
APPELLANT
1 ST RESPONDENT
2ND RESPONDENT
3 RD RESPONDENT
This judgment was handed down electronically by
circulation to the parties' legal representatives by e-mail.
The date for hand down of the judgment is deemed to be
31 August 2026.
Judgment Reserved 6 August 2026
Coram Muller J et al. Pillay J, Nkoana AJ
JUDGMENT
PILLAY J:
2
INTRODUCTION
[1] The appellant before Court sought to have two Judgments of Masilo AJ set aside on
appeal. The first being the main Judgment and Order on the merits and the second
being the Section18(4) appeal. Both appeals pertain to a dispute concerning eighteen
farming properties measuring approximately 1 019.14 hectares, which were restored
to and under the control of the Moletele Communal Property Association ("Moletele
CPA") in terms of the Restitution of Land Rights Act1. These properties were leased
for commercial citrus operations to the parties, and it is these lease agreeq;ients that
have led to the proceedings before this Court.
[2] The dispute centred on competing claims to the farms by NDF (Pty) Ltd (in business
rescue) ("NDF") and Sebenza Agri Investments (Pty) Ltd ("Sebenza"). NDF relied on
a ten-year lease concluded on 1 July 2017, whilst Sebenza relied on a lease
concluded with Moletele CPA on 25 August 2025.
[3] On account of competing rights claimed by the lessees in respect of the properties,
various letters, applications , intervening applications and Orders were sought by
various parties involved in this qispute on various occasions and in many instances
on an urgent basis. Ultimately, this Court was seized with the determination of the
validity of the 2017 lease, the legal effect of the purported cancellation of that lease,
the validity and enforceability of the 2025 Sebenza lease, and whether Sebenza was
lawfully entitled to occupy and harvest on the farms. This flowed from the Judgment
and Order of Masilo AJ wherein the Court a quo ordered that the 2017 lease remained
1 See Act 28 of 1996
3
valid and enforceable, declared the Sebenza lease invalid, ordered Sebenza's
eviction, and granted ancillary relief.
[4] For completeness of the record the Moletele CPA although cited, failed to
meaningfully participate in the proceedings and after the Order was granted by Masi lo
AJ filed a rescission application as well as an application for leave to appeal. On the
date of these appeal proceedings, the Attorney for the Moletele CPA was present in
Court, this Court directed that the matter stand down pending Counsel's receipt of
instructions in relation to the application for leave to appeal by the Moletele CPA,
which had not yet been determined, and whether or not it would have an impact on
this appeal. On resumption, both Counsel confirmed after consultation with the
Attorney for the Moletele CPA, that the Moletele CPA had elected to withdraw the
application for leave to appeal and that this appeal could therefore proceed. Based
on the information provided, this Court proceeded to hear arguments in respect of
both appeals, accepting the decision by the Moletele CPA to withdraw the notice of
leave to appeal, in respect of the main matter.
[5] The second appeal under Section 18(4)(ii) of the Superior Courts Act,2 dealt with the
enforcement of paragraphs 56.1 to 56.5 of the Court Order dated 5 May 2026 granted
by Masilo AJ. This Court will deal with the main appeal first and flowing therefrom,
proceed with the merits of the second appeal in terms of Section 18(4 )(ii) of the
Superior Courts Act.
2 10of2013
4
BRIEF BACKGROUND
[6] The Moletele CPA is lawfully in control over the restituted farms which are the subject
matter of this appeal. NDF is a joint venture company in which Moletele CPA holds
51 % and Strategic Farm Management (Pty) Ltd ("SFM") holds 49% shareholding.
Moletele CPA originally leased the farms to NDF in 2008. Before the lease expired,
the parties concluded a further lease agreement in 2017, extending the lease to 2027.
For approximately eight years NDF occupied and operated the farms under the 2017
lease, with both parties complying with their respective obligations.
[7] On 25 August 2025, the Moletele CPA resolved to terminate the lease agreement
with NDF and on the said date entered into a long-term lease of the abovementioned
farms to Sebenza for a period of 25 years. On 26 August 2025, Moletele CPA gave
notice requiring NDF to vacate the properties. On 28 August 2025, a meeting of
certain NDF directors including Mr Rossouw (the sole director of Sebenza),
subsequently resolved to accept the cancellation and vacate the farms. During
September 2025 the same directors placed NDF into voluntary winding-up by a
special resolution and on 29 September 2025 the Master appointed liquidators.
Sebenza in the meantime took up occupation and commenced farming operations in
respect of the 2025 lease agreement.
[8] On 21 October 2025 the High Court converted the voluntary winding-up of NDF into
a Court supervised business rescue with the appointment of the second and third
respondents as the Business Rescue Practitioners (BRPs). Their ability to discharge
their statutory functions was hampered by Sebenza to the extent that on 16 January
2026 they were granted a Court Order to enforce their rights which still did not
5
materialize. Further Court intervention was the removal of Mr Rossouw from the
board of directors and the reinstatement of the board of directors removed from the
board during September 2025.
[9] Whilst this was unfolding the Moletele Community was divided with opposing factions
concerning which of the two businesses the community best sought to operate the
farms, resulting in there being disruptions to the business operations of Sebenza and
the need for Judicial intervention.
[1 O] On 4 December 2025, the Minister of Land Reform and Rural Development recorded
the outcome of a meeting convened under Section 11 of the CPA Act,3 between the
Minister, the Office of the CPA and the Moletele CPA, and other interested parties
wherein it was resolved that:
"(1) The contract between MCPA and New Dawn (NDF) is valid remained valid
and must be honoured. The contract is still valid for 2 years.
(2) The Sebenza Agri Investment (Pty) Ltd contract is not recognized by the
CPA Office. It contravenes Section 12(1)(c) of the Communal Property
Association Act No, 28 of 1996, as amended."
The Moletele CPA was required in law to submit documentation concerning the
affairs of the Moletele CPA to the Registrar by 16 January 2026, which they failed to
do resulting in the dissolution of the Executive Committee of the Moletele CPA by the
Registrar. This ruling by the Registrar was appealed and subsequently set aside,
reinstating the Executive Committee, however, the resolution itself concerning the
validity of the two contracts was not set aside. The Minister's letter stated that the
3 See No 28 of 1996
6
issues relating to the New Dawn liquidation and Business Rescue are sub-judice and
must be left to the jurisdiction of the Courts.
[11] In 2026 ND F's Business Rescue Practitioners launched urgent proceedings seeking
declarations concerning the competing leases, eviction of Sebenza, and protection
of NDF's assets. Masilo AJ granted the relief as per the Court Order which read as
follows;
1. ''The non-compliance with the provision of Section 12 (1) (c) of the CPA is condoned.
The lease agreement concluded between the First Applicant and the First
Respondent dated 1 July 2017 is declared valid and full force and effect.
2. The lease agreement concluded between the First Respondent and the Second
Respondent dated 25 August 2025 is declared invalid and of no force and effect.
3. The Second Respondent is evicted and all persons occupying through it, are directed
to vacate the farming properties listed in schedule annexed marked "X'' within 48
hours of service of this order.
4. Directing the Sheriff to evict and remove the Second Respondent, and all persons
occupying through it, from the farming properties listed in schedule annexed marked
"X" within 48hours of service of this order.
5. Interdicting and restraining the Second Respondent, all person occupying through it,
from using, encumbering, alienating, disposing or removing any assets belonging to
the First Applicant from the farming properties listed in schedule annexed marked "X"
within 48 hours of service of this order.
6. The Second Respondent is directed to pay the costs of the main application on the
scale as between attorney and client, including the costs of two Counsel where
employed on Scale C."
7
[12] The Court a quo found that the 2017 lease agreement was valid even though the
Moletele CPA Committee's term of office had expired when the agreement was
signed and amidst the alleged non-compliance with statutory requirements. The
Court a quo found that the signatory who represented the Moletele CPA had acted
with authority, and that the parties had acted on that representation for many years.
The Court a quo relied upon the principle of ostensible authority and estoppel when
considering the validity of the 2017 lease agreement and relied on the resolutions in
2025 recognising the validity of the lease. The Court a quo further found that the
Business Rescue Practitioners had standing to institute proceedings, as they had a
direct and substantial interest in preserving NDF's assets and operations.
[13] The Court a quo found the lease agreement with Sebenza invalid and unenforceable,
relying partially on the resolution determining that the agreement contravened section
12(1 )(c) of the CPA Act. The Court a quo expressed serious concern about the role
of Mr Rossouw, who simultaneously occupied positions of authority in both NDF and
Sebenza during this cancellation of the 2017 lease agreement. The Court a quo made
specific reference to his participation in decisions affecting NDF, while benefiting
Sebenza. According to the Court a quo this created serious conflicts of interest and
was contrary to,the fiduciary duties of a Director in terms of Sections 75 and 76 of the
Companies Act4. The Court a quo ultimately concluded that NDF retained rights
under the 2017 lease and that Sebenza's occupation was unlawful, leading to the
eviction order being granted.
4 See Act 71 of 2008
8
[14] The Court a quo granted the appellant's leave to Appeal these findings and Court
Order and thereafter, granted the respondents execution in terms of Section 18(3) of
the Superior Courts Act. This led to the automatic right of appeal sought by the
appellants in respect of the execution order granted in terms of Section 18(3) of the
Superior Courts Act.
[15] The appellants disputed the authority of the first respondent to seek an eviction order
against the appellant. The argument was that the respondent had no authority as the
first respondent was not the lessor nor holding any right in terms of any valid lease
agreement and thus had no locus standi to institute proceedings against the
appellant. The appellant indicated that if it was found that the first respondent did not
have the relevant locus standi that would dispose of the matter in its entirety.
[16] The appellant's argument before this Court was two-pronged, the first was ostensibly
that the 2017 NDF lease was invalid from inception because the Moletele CPA
Committee lacked authority when it concluded the lease. The appellant argued that
the Committee's term had expired years earlier and therefore they had no authority
to bind the Moletele CPA. The appellant further contended that statutory approval
requirements were not met and that the Court a quo lacked the relevant authority to
"condone" non-compliance with Section 12(1 )(c) of the CPA Act especially as such
non-compliance could not be condoned. The Court a quo further erred in granting
the unenforceable Preservation Order concerning the first respondent's movable
assets which were not identified by the Business Rescue Practitioners on the various
farms. There was no valid way in which this Order could be executed as it was unclear
which movable assets belonged to the first respondent. Thus, as it stood there was
9
no clarity as to how to give effect to the said Order in respect of the alleged movable
assets.
[17] The appellant's further argument was to the effect that the 2017 lease was terminated
by agreement in that the Moletele CPA issued a notice terminating the lease and that
NDF accepted that termination through a resolution taken by its directors. According
to the appellant, cancellation was accepted and implemented with the first
respondent voluntarily vacating the properties. The appellant highlighted that the
termination was by mutual consent (mutuus dissensus}, and that parties to an
agreement could agree to terminate an agreement, regardless of \fl/hether the lease
agreement contained an express cancellation clause, which, was required to be
triggered to warrant a cancellation of the contract. Moreover, the appellant argued
that this was accepted as being the case, by the liquidators, concerning them being
aware that the lease agreement was cancelled and that there were new tenants on
the farms.
[18] The appellant also raised the issue that the Minister had overturned the
administrative decisions relied upon by the Court a quo and that those later
developments were not considered by the Presiding Judge, which according to the
appellant, affected the eviction order and the entitlement claimed by the first
respondent to seek the eviction order.
[19] The appellant reluctantly conceded that the Sebenza lease agreement was
dependent on suspensive conditions which were not complied with, despite the
appellant having occupied the farms, however, the appellant indicated that this
current lease agreement was before the Registrar for consideration. The appellant
10
argued that the Court a quo erred in its findings, and that the appeal on the merits
must succeed. The appellant relied on the fact that no statutory power existed to
condone non-compliance with section 12(1 )(c) and therefore the Court a quo erred
in granting condonation especially as same was not sought by the respondents.
[20] The appellant sought various orders if successful, which are not being repeated as
they concerned a counterclaim that was not prosecuted by the appellant. In essence,
the appellant sought that the Order of the Court a quo be set aside, and the finding
that the 2017 lease agreement was void ab initio and in the alternative that it was
terminated by mutual agreement between the parties. Further that the respondents
had no locus standi to have sought the eviction of the appellant considering the
aforesaid circumstance. The appellant sought costs on Scale C including the costs
of two Counsel.
[21] The respondents argued that the 2017 lease was valid as it was recognised by the
relevant statutory authorities and was never lawfully terminated. They argued that the
lease agreement had spanned eight years without there being any legal dispute
raised, concerning its validity. The Moletele CPA never once approached the Court
for a declarator concerning the validity of the 2017 lease agreement. Moreover, the
respondents indicated that even if it was not valid, that would simply result in the
contract being voidable but not void ab initio. The respondent argued that the 2017
lease contained a specific breach and notice cancellation mechanism, requiring a
breach, notice to remedy and a cure period, none of which occurred nor was there
an allegation of breach of the terms of the lease agreement during this period, raised
by the Moletele CPA, in writing. The respondents further argued that currently the
11
respondents were still complying with the terms of the agreement and making
payment which was being received by the Moletele CPA without any objection or
return of said funds. This was a clear indication that there was a valid lease which
would only expire in 2027.
[22] The respondents contended that the Sebenza lease never became operative
because several suspensive conditions were not fulfilled, including statutory
approvals and cancellation of the NDF lease. Since those conditions were not
fulfilled, Sebenza acquired no rights of occupation. Moreover, Mr Rossouw's
involvement in both NDF and Sebenza created a conflict of interest and tainted the
process whereby NDF purportedly accepted termination of its lease. The
respondents relied on the resolutions of the Moletele CPA, the CPA Office and
Ministerial processes recognising the continuing validity of the NDF lease, as support
for the fact that the 2017 lease's validity was confirmed by the resolution of the
Moletele CPA at the meeting and that same was effective till 2027.
[23] The respondents indicated that if the lease agreement of 2017 was void ab initio,
then why did the appellant rely on the alleged termination of the lease agreement.
The respondents argued that there would be no need to terminate that which did not
exist and maintained that it was inappropriate for the appellants to rely on both
defences at the same time, to justify the reljef sought on appeal.
[24] The respondent highlighted that notwithstanding the confirmatory affidavit of Mr
Malatjie in respect of the contents of Mr Rossouw's affidavit concerning himself, there
was no indication that the Moletele CPA had sought a declarator from the Court,
concerning the invalidity of the 2017 lease agreement or that the Committee in 2017
12
had no authority to commit the Moletele CPA to the agreement, amidst the opinions
sought by the Moletele CPA, concerning this issue. According to the respondents,
the appellant was not a party to the 2017 contract, therefore was not entitled to
question the validity thereof.
[25] In respect of the Sebenza agreement, the respondents noted that amidst Mr Malatjie
confirming the intention of the appellants and the Moletele CPA to enter into and
honour the Sebenza lease agreement, same had "Conditions Precedent" which were
not fulfilled. In the result, the respondents sought that the appeal was without merit
and a further stratagem in delaying the enforcement of the 2Q17 lease agreement
and therefore sought the dismissal of the appeal including costs on scale C including
the costs of two Counsel.
[26] In respect of the appeal in terms of Section 18(4)(ii) of the Superior Courts Act 10 of
2013, the appellant relied on the following points;
[26.1] That the Court a quo granted leave to appeal on the merits and thereafter
granted the order in terms of Section 18(3) of the Superior Courts Act.
[26.2] That the Court a quo failed to consider the appellant's prospect of success on
the merits and had by granting the application in terms of Section 18(3) in
essence sat as a Court of appeal confirming the dismissal of the appeal.
[26.3] That the Court a quo failed to appreciate that Sebenza was in occupation of
the farms since August 2025 and made no mention thereof.
[26.4] That the Court a quo failed to consider the financial prejudice that the
appellant would suffer by the granting of the order.
13
[26.5] That the Court a quo failed to consider the enrichment lien over some
R26 000 000,00 in capital improvements and GLOBALGAP infrastructure and
financial investment, made by the appellant in the farms and the irreparable
harm to be suffered by the appellant because of the order granted.
[26.6] That the Court a quo failed to consider that the first respondent was in
business rescue and that any damages claim sought against the first
respondent would be that of the ordinary creditor.
[26. 7] That the Court a quo failed to consider the irreparable harm to the farm
workforce which would be disrupted by the execution of the eviction order.
[26.8] That the Court a quo failed to consider that the circumstances relied upon by
the respondents, were not exceptional and that the granting of the order in
terms of Section 18(3) of the Superior Courts Act 10 of 2013 must be set aside
and replaced by the following;
[26.8.1]
[26.8.2]
The appeal is upheld with costs on scale C.
The Order of the Court a quo dated 9 June 2026 is set aside and
replaced with the following Order:
[26.8.2,1] The application in terms of Section 18(1) and (3)
of the Superior Courts Act 10 of 2013 is dismissed.
[26.8.2.2] The applicants are ordered to pay the costs of the
application on scale C jointly and severally, the
one paying the others to be absolved.
[27] In argument before this Court, the appellant relied on the enrichment lien and the
financial irreparable harm that would be suffered by the appellant if this order was not
set aside.
14
[28] In response, the respondents argued that the harm complained of was not irreparable
as it flowed from the appellant's decision to enter into an inchoate lease agreement,
and that any damage claim sought by the appellant to have been, was to be sought
against the lessor, and not the respondents. The respondents sought that this appeal
also be dismissed with costs on scale C.
[29] The common cause facts were identified as the following;
[29.1] That the Moletele CPA had the relevant authority over the various farms and
was responsible for contracting with the parties before Court in respect of the
lease agreements of the various farms.
[29.2] That there was an agreement in 2017 concerning the lease of these farms for
agricultural farming with NDF which flowed from a previous lease agreement.
[29.3] That for a period of eight years this agreement operated and was complied
with by the parties without any legal declarator being sought concerning the
validity or enforceability of the said lease agreement.
[29.4] That the Moletele CPA in 2025 resolved to terminate the lease agreement with
NDF and gave notice to NDF cancelling the 2017 lease agreement which was
accepted by NDF's Directors and NDF vacated the farms.
[29.5] That theMoletele CPA contracted to lease the farms to Sebenza and in terms
of this agreement it was recorded that on 10 July 2022 already, Moletele CPA
had resolved to lease the farms to Sebenza with "Conditions Precedent" which
were still not fulfilled in 2025, when Sebenza took occupation of the farms.
[29.6] That Sebenza was in current occupation and involved in farming operations
on the farms.
15
[30] The facts in dispute were identified as the following;
[30.1] Whether the 2017 lease was valid from inception.
[30.2] Whether the 2017 lease was lawfully cancelled.
[30.3] Whether NDF validly accepted the cancellation and whether mutual
termination could replace the contractual cancellation clause as contained in
the 2017 lease agreement.
[30.4] Whether Mr Rossouw's conflict rendered the acceptance invalid.
[30.5] Whether the Sebenza lease became enforceable.
[30.6] Whether statutory approvals could be condoned or overlooked by the Court a
quo.
[30. 7] Whether the Minister's letter affected the resolutions made in December 2025.
[30.8] Whether Sebenza enjoyed a valid enrichment lien.
[30.9] Whether the Court a quo erred in ordering a punitive Cost order against the
appellant.
[31] In considering the above, this Court is mindful that a Court of appeal is not at liberty
to depart from the findings of fact and credibility made by the Court a quo, unless
they are vitiated by irregularity, or unless on examination of the record it is revealed
that those findings were patently wrong.5
[32] The appellant sought that this Court consider the locus standi of the respondents to
institute proceedings in circumstances where their standing was disputed. This was
on account of the allegation that the 2017 NDF lease was invalid therefore the second
5 See S v Francis 1991 (1) SACR 198 (A) at 198 J - 199A and S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645
E-F
16
and third respondents were not entitled to act on behalf of the first respondent in
respect of enforcement of the 2017 lease agreement and the other prayers granted·
by the Court a quo.
[33) Locus Standi is described in LAWSA 6 as follows:
"He who has a right to sue in an action is said to have a locus standi in such action,
and vice versa. "Everyone has a right to be heard in his own cause, and no one, save
a qualified practitioner, has a right to be heard in the cause of another" (per SEARLE,
JP in Rescue Committee, DRC v Martheze 1926 CPD 300). The test is, "has the
person appearing a direct personal interest in the suit". In that case, it may be
considered as 'his cause,,, (ibid)."
[34] In Amblers Precedents of Pleadings7 LexisNexis L TC Harms et al 2018 on page 248 the
following is said:
"The question of locus standi is in a sense procedural, but it is also a matter of
substance. It concerns the sufficiency and directness of a person's interest in the
litigation to be accepted as a litigating party. It is also related to the capacity of a
person to conclude a jural act. Sufficiency of interest depends on the facts of each
case and there are no fixed rules.
[35) In the case of Gross v Pentz8
''The general rule is that it is for the party instituting proceedings to allege and prove
its locus standi. and the onus of establishing it, rests on that party. It must accordingly
appear ex facie the founding papers that the parties have the necessary legal
standing (locus standi in iudicio).
6 See (The Law of South Africa) LexisNexis JA Faris et al Durban 2022
7 See LexisNexis L TC Harms et al 2018 on page 248
8 See [1996] 4 All SA 63 (A), 1996 (4) SA 617 (A)
17
[36] The appellant sought this Court to revisit the Order of the Court a quo concerning the
findings by the Court a quo of the validity of the 2017 NDF lease. The appellant's
contention was that the lease agreement was void ab initio because the Executive
Committee of the Moletele CPA lacked authority, when it concluded the lease. The
appellant relied on the argument that the Committee's term had expired years earlier
and therefore the Executive Committee had no authority to bind the Moletele CPA.
The respondents countered with the argument that there was no evidence placed
before the Court a quo to justify that contention particularly as the appellal])t was not
in any way involved with the parties at the time of this agreement coming into
operation. The respondents highlighted that if the lease agreement was void ab initio,
then there was no need on the part of the Moletele CPA to seek cancellation.
Moreover, the lease would not be void but rather voidable. Thus, providing for the
respondent who was the party without being aware of this circumstance, to elect to
continue with the contract as it was.
[37] The provisions of Section 12(3) and 12(4) of the Communal Property Association Act9
provides;
9 See28 of 1996
"12(3) Any disposal, mortgage, encumbrance, purchase or prescribed transaction in
contravention of subsection (1) shall be voidable.
12(4) A member who alleges that an association has concluded a transaction
contrary to the provisions of subsection (1) may request the Registrar to
intervene in challenging the validity of such transaction."
18
[38] There was no indication in terms of Section 12(4) of any declarator being sought by
the members of the Moletele CPA concerning the validity of the said lease agreement
with NDF. It would also not necessarily be in their interest to raise an issue with the
business entity of which it holds 51 % shareholding and to whom they were
contracting for the benefit of the Moletele CPA. From the record, it was apparent that
this agreement since its inception was operational for a period of eight years. In as
much as there were discussions and opinions sought concerning the validity oMhe
said NDF lease agreement, the Moletele CPA did not pursue same and was
performing in terms of the agreement by submitting accounts and receiving payment
in respect of same. It was also noteworthy that the Moletele CPA already in 2022,
had resolved to lease the farms to Sebenza, as endorsed on the Sebenza lease
agreement, which was only signed by all the parties in 2025. This resolution by the
Moletele CPA already in 2022 puts into question the bona tides of the Moletele CPA
and Sebenza in respect of circumstances pertaining to the 2017 lease agreement.
[39] The respondents maintain that the Executive Committee of the Moletele CPA had
authority to contract with NDF in 2017 concerning the lease of the farms. The contract
specifically endorsed that the parties to the contract were duly authorised and
capable of contracting in respect of the lease agreement. Moreover, the respondents
highlighted that if the authority was in dispute, at the time of contracting, the first
respondent contracted in good faith, accepting the ostensible authority of the then
Executive Committee of the Moletele CPA and performed in terms of the said
contract. It was not disputed that the Moletele CPA accepted said performance
throughout this period. The respondents also placed reliance on the Turquand rule in
justifying the validity of the lease agreement.
19
[40] Regard was had to Nieuwoudt NO and Another v Vrystaat Mielies (Edms) Bpk10.
at paragraph 8 where reference was made to the Turquand Rule, where the Court
noted the following;
"A modern formulation of the rule, which was approved by Lord Simonds in Morris v
Kanssen {19461 AC 459 at 474, is taken from Halsbury's Laws of England, 2 ed, vol
5, para 698 (see now 4 ed, reissue vol 7(1), para 980) and is in the following terms:
'Persons contracting with a company and dealing in good faith may assume
that acts within its constitution and powers have been properly and duly
performed and are not bound to inquire whether acts of internal management
have been regular.'
This reliance by the respondents was confirmed by the conduct of the Moletele CPA
in respect of their business dealings with the respondent and showed joint
commitment to the terms of the 2017 lease agreement. The respondent motivated
that if the authority was found not to have existed and not valid, which was disputed,
then the lease agreement would in terms of Section 12(3) be voidable and not void
ab initio as sought by the appellcmt. The respondent argued that the voidable lease
remained operative until and unless it was set aside. No fault could be found by this
Court, in respect of that submission.
[41] The appellant relied on the material dispute of fact allegation in support of why the
Court a quo had erred concerning the legality of the 2017 lease agreement. On the
appellant's version from the onset there was no valid lease agreement in place. The
appellant amidst challenging the lease agreement of 2017 as being void, failed to
ventilate why it then sought to rely on the cancellation of the same "void" agreement.
10 See (32512002) [2003] ZASCA 128; [2004] 1 All SA 396 (SCA); 2004 (3) SA 486 (SCA) (28 November 2003)
20
The agreement was either void and not in existence in toto, or valid and was validly
cancelled, whichever argument the appellant sought to base their defence on, the
appellant was not justified in relying on both versions at the same time to justify
success on appeal.
[42] Regard was had to the case of Faulkner V Freeman11 where the following was said
in this context:
'It is trite law that, where a party to a contract alleges material non-disclosure, he may
not approbate and reprobate but must elect which course he intends to follow - he
must exercise an election whether to abide by or cancel the contract and he is bound
by his election. The fact that the contract has been incorporated in a Court order
cannot improve his position as far as this principle is ·concerned.'
[43] This Court aligns itself to the assertion by the respondent concerning this
inconsistency and the fact that the appellant appeared to be uncertain, concerning
which set of circumstances it sought to rely upon on appeal. Moreover, it was
apparent from the conduct of the Moletele CPA that on 4 December 2025 it resolved
that the 2017 NDF agreement was valid and must be honoured till the termination of
same in 2027. This resolution was conveyed by the Minister to the relevant parties
on 9 December 2025 and ex facie the document, the Minister clearly highlighted all
the parties present at the meeting and the resolution taken by the parties involved.
This Court accepts the contents of the Ministerial letter strengthening the
respondent's submission concerning this aspect. Accordingly, this Court finds that
the 2017 Lease agreement between NDF and the Moletele CPA is valid and binding
11 See1985 (3) Sa 555 CPO
21
upon the parties and was, in any event, ratified by the Moletele CPA on 4 December
2025.
[44] For completeness of this aspect regard was had to the communication by the Minister
dated 4 March 2026 concerning the suspension of the decision by the Acting
Registrar dated 16 February 2026, in respect of the dissolution of the Executive
Committee. It was recorded that all decisions and agreements remained in place,
which would include the resolution taken on 4 December 2025. Thereafter, the
Minister on 17 April 2026 set aside the Acting Registrar's decision of suspension of
the Executive Committee and elected not to comment on the ongoing dispute
between the parties. Therefore, the supplementary affidavit by the appellant did not
strengthen the appellant's position concerning the resolution taken on 4 December
2025. The Court a quo had regard to same and could not be faulted for its finding
that the resolution of 4 December 2025 supported the respondent's position of the
2017 lease agreement being binding on the parties.
[45] The appellant contended that statutory approval requirements were not met and that
the Court a quo lacked the relevant authority to "condone" non-compliance with
Section 12(1)(c) of the•CPA Act especially as same could not be condoned. This
Court had regard to the record of proceedings and respective heads of argument and
noted that the Court a quo was not empowered, nor were the respondents invited to
seek such relief from the Court a quo, to grant condonation and erred by ordering
condonation in circumstances where it was not sought nor provided for in terms of
the Communal Property Association Act. As highlighted above the order by the Court
a quo concerning condonation did not detract from the finding of the Court a quo,
22
correctly so, that the 2017 lease agreement was valid and binding on the parties. This
was strengthened by the resolution of 4 December 2025. The appellant's ground of
appeal on this point therefore must fail.
(46] The next issue for determination was whether as relied upon by the appellant this
agreement was validly terminated by the parties in August 2025. From the record of
proceedings, it was apparent that the Moletele CPA had resolved contracting with
Sebenza as far back as 10 July 2022 as per the written contract with Sebenza12. The
circumstances surrounding the termination of the lease were shrouded in mischief
orchestrated between Mr Malatjie representing the Moletele CPA and Mr Rossouw
who was one of the Directors of NDF as well as being, the sole Director of Sebenza.
(47] The appellant sought this Court to accept that the,parties mutually agreed to the 2017
Lease agreement being terminated as confirmed by Mr Rossouw. This argument was
opportunistic, especially as the 2017 lease agreement had specific provisions
concerning breach of the contract, to warrant cancellation. These breach provisions
were never raised by the Moletele CPA as grounds relied upon to cancel the lease
agreement. The resolution taken by the Moletele CPA did not record the reason for
the termination of the said lease, which would have only expired in 2027, nor was it
recorded why it was terminating this lease agreement with NDF, where it held 51 %
shareholding.
In addition, regard was had to the 2017 lease agreement with specific reference to
paragraph 21 .3 which reads as follows:
12 See paragraph 2.3 of the Sebenza lease agreement
23
"21.3 No variation or consensual cancellation of this agreement shall be of any force
or effect unless reduced to writing and signed by both parties."
Ex facie the 2017 lease agreement the mutual termination by both parties was
required to be in writing. This Court noted that there was no record before the Court
a quo or before this Court verifying compliance with this provision.
[48] This Court took cognisance of the fact that the plans between the appellant and the
Moletele CPA prejudiced the first respondent and the acceptance of the termination
of the lease agreement was questionable, especially considering the short notice and
the decision by the then Directors to place NDF under voluntary liquidation
immediately thereafter. These acts lend credence to the findings by the Court a quo
that there was no real acceptance by the respondent to terminate the 2017 lease
agreement. This is further supplemented by the respondent's application to enforce
the lease agreement, and the Court Ordered removal of Mr Rossouw from the
Directors of NDF. These circumstances were common cause, and this Court aligns
itself with the finding that the first respondent had not accepted the cancellation of
the 2017 Lease Agreement and same was not capable of being cancelled by mutual
agreement by the parties as the 2017 Lease Agreement made no provision for
cancellation in this way. The letter from the liquidators was confirmation of the
information received and not a finding by the liquidators of this subject.
[49] Regard: was had to the lease agreement between the Moletele CPA and Sebenza
which was conceded to by the appellant as having "Conditions Precedent" which
were recorded in paragraph 4 of the lease agreement as follows;
24
"(4.1) Cancellation of the lease agreement between the Lessor and New Dawn
Farming Enterprise (Pty) Ltd over the Properties.
( 4. 2) Approval of this Deed of Lease in terms of Section 12( 1 )( c) by the Registrar of
Communal Property Associations as contemplated in section 2 C(1) of the Communal
Property Associations Act 28 of 1996.
(4.3) Approval of this Deed of Lease by the Minister of Agriculture in terms of the
Subdivision of Agriculture Land Act.
(4.4) Registration of this notarial Deed of Lease against the Properties."
[50] All of these conditions had to be complied with before the appellant's lease became
valid, and of full force and effect. Both the Moletele CPA and Sebenza relied on the
argument that the parties had agreed to the occupation and continued farming on the
various farms as per the contract, condoning the non-compliance of the statutory
regulations with the arrangement that the suspensive conditions would be fulfilled in
the future. The appellant indicated that the said agreement was being considered by
the Registrar currently however, there was still no change in the legal status of the
lease agreement as it stood.
[51] In Mia v Verimark Ho/din.gs (Pty) Ltd, 13the Supreme Court of Appeal stated:
"The conclusion of a contract subject to a suspensive condition creates 'a very real
and definite contractual relationship' between the parties. Pending fulfilment of the
suspensive condition the exigible content of the contract is suspended. On fulfilment
of the condition the contract becomes of full force and effect and enforceable by the
parties in accordance with its terms. No action lies to compel a party to fulfil a
suspensive condition. If it is not fulfilled the contract falls away and no claim for
13 See [2010] 1 All SA 280 (SCA) at para-1 .
25
damages flows from its failure. In the absence of a stipulation to the contrary in the
contract itself, the only exception to that is where the one party has designedly
prevented the fulfilment of the condition."
[52] This principle was confirmed in Vantage Goldfields SA (Pty) Ltd v Siyakhula
Sanke Empowerment Corporation (Pty) Ltd and Another14 , where the Supreme
Court of Appeal held that an agreement subject to unfulfilled conditions precedent
lapsed automatically, and subsequent addenda could not revive a lapsed contract,
where the parties failed to extend the deadline for the condition before its expiry.
[53] The consequence of the unfulfilled suspensive conditions was that the rights and
obligations under the lease remained suspended. Neither party would be able to
enforce the lease until the <:onditions were complied with. If these conditions were
never fulfilled, the lease would fall away by operation of law.
[54] Regard was had to Gravitek CC v Cartmel Investments CC and Others15 where
the Court noted;
"Suspensive conditions suspend the rights and obligations of contracting parties until
an uncertain future event occurs. Upon the occurrence of the event, the contract is
brought into existence and the rights and obligations of the parties become
enforceable. The effect of the non-fulfilment of a suspensive condition is that the
suspended rights and obligations of the contracting parties never come into
existence ... "
14 (853/2023) [2025] ZASCA 01 (SCA, 9 January 2025)
15 See [2019] ZAKZDHC 11 at para 16- 17.
26
[55] By all accounts, even with the most generous consideration to the appellant this was
not an enforceable valid agreement based on all the conditions needing fulfilment.
The four suspensive conditions were not fulfilled as things stood, and approval from
various bodies was required for same to materialize. On this basis alone the
appellant's reliance on this lease as entitlement and right to be on the farms is without
merit and the appeal based on the Sebenza lease must therefore also fail.
[56] In as much as the appellant contended that the respondent had failed to identify the
movable assets on the property for the Court a quo to order for the preservation of
those assets as per the requirements of Setlogelo v Setlogelo, 16 this Court took
cognisance of the fact that, for the Court a quo to have gr,anted the Order, it was
based on evidence that required identifying all the movable assets on the Farms,
which the second and third respondents, as the new Business Rescue Practitioners
were obliged in terms of their mandate to do, however they were being hampered in
accessing the properties and being able to correctly identify all the movable assets,
belonging to the first respondent, qn account of the conduct of the appellant. This
was confirmed by the Court Orders granted to the respondents in respect of same.
[57] The appellant on the other hand did not rebut the allegation of ownership of movable
assets by NDF on the farms but questioned why the wording of the Court Order was
so wide lacking specifics relevant to identify these assets. The appellant did not
dispute that use was being made of the orchards, packhouses, equipment and
storage facilities which did not belong to the appellant. This Court appreciated that
NDF was operating the farms until August 2025 for 8 years, requiring the acquisition
16 See 1914 AD 221
27
of movable assets to perform in terms of the lease agreement, and as much as the
Order of the Court a quo may be labelled as vague for lack of particularity, given the
circumstances that the respondents were placed in by the conduct of the appellant,
this Order was appropriate in light of the allegations that access onto the Farms was
being hampered by the appellant, and on that basis this Court is satisfied that the
Court a quo had not erred in making this Order and therefore the appeal on this
ground is without merit.
[58] In respect of the Section 18(4) Appeal;
Section 18 of the Superior Courts Act provides in the relevant part as follows:
"Suspension of decision pending appeal: -
(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise; the operation and execution of a decision
which is the subject of an application for leave to appeal or of an appeal, is
suspended pending the decision of the application or appeal.
(2)
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if
the party who applied to the court to order otherwise, in addition proves on a
balance of probabilities that he or she will suffer irreparable harm if the court
does not so order and that the other party will not suffer irreparable harm if the
court so orders.
(4) If a court orders otherwise, as contemplated in subsection (1) -
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next highest
court;
28
(iii) the court hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv) such order will be automatically suspended, pending the outcome of
such appeal"
[59] This Court was mindful of the various case law dealing with Section 18(3) applications
and the consequent factual finding requirements that needed to be considered when
granting the said application. In lncubeta Holdings and Another v Ellis and
Another, 17 at paragraph 16 Sutherland J noted the following;
"[16] It seems to me that there is indeed a new dimension introduced to the test by
the provisions of Section 18. The test is twofold; the requirements are:
16.1 First, whether or not 'exceptional circumstances 'exist, and
16. 2 Second, proof on a balance of probabilities by the applicant of-
16. 2. 1 The presence of irreparable harm to the applicant/victor, who
wants to put into operation and execute the order, and,
16.2.2 The absence of irreparable harm to the respondent/loser, who
seeks leave to appeal."
[60] In MV Ais Mamas: Seatrans Maritime v Owners, MV Ais Mamas, and Another18
where the Court recognised that it was not possible to attempt to lay down precise
rules as to what circumstances were to be regarded as exceptional and that each
case had to be decided on its own facts. However, at page 156H - 157C, the Court
noted the following:
17 See 2014 (3) SA 189 (GSJ)
18 See 2002 (6) SA 150 (CJ
29
'What does emerge from an examination of the authorities, however, seems
to me to be the following:
1. What is ordinarily contemplated by the words exceptional circumstances is
something out of the ordinary and of an unusual nature; something which is
excepted in the sense that the general rule does not apply to it; something
uncommon, rare or different; besonder, seldsaam, uitsonderlik, or in hoe mate
ongewoon.
2. To be exceptional the circumstances concerned must arise out of, or be
incidental to, the particular case.
3. Whether or not exceptional circumstances exist is not a decision which
depends upon the exercise of a judicial discretion: their existence or otherwise
is a matter of fact which the Court must decide accordingly.
4. Depending on the context in which it is used, the word exceptional has two
shades of meaning: the primary meaning is unusual or different; the secondary
meaning is markedly unusual or specially different.
5. Where, in a statute, it is directed that a fixed rule shall be departed from
only under exceptional circumstances, effect will, generally speaking, best be
given lo the intention of the Legislature by applying a strict rather than a liberal
meaning to the phrase, and by carefully examining any circumstances relied
on as allegedly being exceptional.'
[61] The appellant relied on the following submissions highlighting that the Court a quo
failed to properly consider whether Sebenza would suffer irreparable harm if the
section 18(3) order was granted. According to the appellant, the Court a quo
addressed NDF's alleged prejudice extensively, but reduced Sebenza's prejudice to
30
a single finding that it had no valid lease and therefore no legitimate basis to remain
on the farms. The appellant argued that this approach failed to engage with the
substantial evidence placed before the Court concerning the prejudice that would
result from immediate implementation of the Judgment.
[62] The appellant relied on its alleged enrichment lien arising from approximately R26
million spent on capital improvements, farming infrastructure and GLOBALGAP
compliance measures. It contended that eviction before the appeal was determined,
would effectively deprive the appellant of the benefit of those investments and
undermine any security it held over the property. The appellant argued that loss of
GLOBALGAP certification would result in immediate and irreversible commercial
prejudice since export accreditation, once disrupted during a production season,
could not readily be restored.
[63] The appellant also emphasized the consequences of the immediate eviction for
employees whose rights are safeguarded by section 197 of the Labour Relations Act.
It argued that disruption of the farming operations would have prejudiced those
employees and created uncertainty that could not simply have been remedied by a
successful appeal at a later stage.
[64] A further aspect of prejudice identified by the appellant was NDF's business rescue
status. Tt,e appellant maintained that NDF's business rescue status materially
increased the prejudice it faced. It argued that if it were evicted and subsequently
succeeded on appeal, any damages claim would rank merely as a concurrent creditor
claim against a financially distressed entity. On that basis, the appellant submitted
31
that it faced a real risk that any future monetary recovery would not be practically
recoverable.
[65] The appellant ultimately submitted that NDF failed to discharge the burden imposed
by section 18(3) of proving that the appellant would not suffer irreparable harm if
execution proceeded. It argued that this failure, on its own, warranted the setting
aside of the execution order. The appellant sought that the appeal on the merits and
in terms of Section 18( 4) be granted as per the notice of appeal and heads of
argument.
[66] The respondents submitted that the exceptional circumstances relied upon were
cumulative in nature and were not ordinary incidents of commercial litigation. They
argued that the Court a quo had correctly considered the combined effect of several
factors which, when viewed together, justified execution notwithstanding the pending
appeal. The respondents submitted that NDF's sole income-producing asset
consisted of a citrus farming operation and that the harvest was seasonal in nature.
They argued that once a harvest season was lost, it could not be recreated or
repeated during the lifespan of the appeal process.
[67] The respondents indicated that NDF was in business rescue and that the income
generated by the farming operations was essential to preserving the interests of
creditors .and cession holders. The harvest proceeds were therefore of critical
importance to the business rescue process. The respondents submitted that the
balance of irreparable harm favoured execution and weighed against the prejudice
identified by the appellant which was fundamentally financial and therefore prima
32
facie recoverable by a claim for damages. By contrast, the respondents contended
that the losses they faced were incapable of later recovery.
[68) The respondents argued that the appellant failed to demonstrate, on a factual basis,
that such losses would be irrecoverable. The respondents submitted that the
appellant's alleged harm arose from the loss of a benefit which the Court had already
found was never lawfully entitled to be enjoyed by the appellant. The respondents
argued that this was not the type of irreparable harm contemplated by Section 18(3).
The respondents maintained that the enquiry under Section 18(3) was not whether a
party would suffer absolutely no harm. Instead, the Court was required to determine
whether the harm identified was truly irreparable. The respondents indicated that
adopting an absolute approach would render Section 18(3) ineffective in practice.
The respondents maintained that the appellant remained in occupation under a lease
which had been declared invalid by the Court, which had not been recognised by the
relevant statutory authorities and on which, the appellant's Counsel had reluctantly
conceded, had never become legally operative.
[69] The respondents indicated that their own loss consisted of an entire citrus harvesting
season, which once lost could never be restored through a later Court Order or
damages award. Further, the loss of a harvest season would therefore have resulted
in a permanent loss that could not be remedied through a subsequent damages
award. The respondents reasoned that the revenue generated from the harvest was
necessary for the business rescue process and for the protection of creditors and
cession holders, whose interests depended on the successful completion of the
season. According to the respondents, these losses were irreversible and therefore
33
constituted true irreparable harm. The respondents maintained that the appellant had
advanced nothing on appeal that undermined those findings and that both the Main
Appeal and the Section 18(4) appeal ought therefore to fail.
[70] In considering the arguments canvassed by the parties and the applicable legal
principles it was apparent that the appellant relied on the enrichment lien of
approximately R26 000 000,00 allegedly spent on improvements and in the farming
operations. The Court a quo recorded and considered the lien but concluded that it
did not confer upon the appellant any right to remain in occupation of the farms.
This Court considered whether the appellant was a bona fide possessor in.respect of
its right to remain on the farms relying on this lien. The appellant highlighted in the
Court a quo that there was an enrichment lien but failed to mention what the
enrichment lien entailed. It was only when the appellant opposed the Section 18 (3)
application that the appellant disclosed the value of the alleged lien being
R26 000 000,00 without detailing in toto how that amount was utilized to improve the
farms for the benefit of the Moletele CPA. This was the first instance where the
appellant sought the Court to consider why the execution of the eviction would be
prejudicial if granted. This aspect was never appropriately ventilated during the
hearing of the main application prior to the eviction being made an Order of Court.
[71] In considering the issues canvassed by the parties in respect of this enrichment lien,
this court had regard to the case of Passano v Erasmus 19 at paragraph 21 and 22
where the court noted:
19 (A 163/2023) [2025] ZAGPPHC 249 (12 March 2025)
34
"[21] The court a quo, in respect of an enrichment lien, referred to the following
extracts from Lakka v Beukes and Another (CA & R 60/2018) (20201
ZANCHC 11 (23 March 2020):
"It is trite that a bona fide possessor who has preserved or made
improvements to another's property at his or her expense has a right
of retention against the property to secure compensation for his or her
necessary and useful expenses. This is a real right and an absolute
defence against eviction by the owner or any future owners of the
property. The exceptions being where ownership is acquired though a
sale in execution where the purchaser was unaware of the right of
retention and the retentor, with full knowledge of the sale fails to inform
the purchaser of this right and sales in insolvency.
Where it is the previous owner of property who has been enriched (as
in this case the Visagies) at the expense of the lien holder, it is to him
that the lien holder should seek redress for purposes of a possible
enrichment claim, but the right to retention can be held against the
new owner (even though he or she has not been enriched) until the
lien holder has been duly compensated. In Pheiffer v Van Wyk and
Others 2015 (5) SA 464 (SCA) at 467. the SCA held:
[12] A real lien (an enrichment lien) is afforded a person who has expended
money or labour on another's property without any prior contractual
relationship between the parties. The lien holder is entitled to retain
possession until his enrichment claim has been met. It is an
established principle of our law that the owner of the property subject
to the right of retention may defeat the lien by furnishing adequate
security for the payment of the debt."
35
[22] As to the issue of whether the respondent qualified to be regarded as a bona
fide occupier, the court a quo relied on the following extract from Boshoga &
Another v Mmakolo and Others (82446/2016) [20181 ZAGPPHC 656 (7 March
2018):
"[32] In Wille's Principles of South African Law 9th Edition at 1075 reference is
made to de Vos Verrykingsaanspreeklikheid 245-7 who defines (for the
purposes of the law of enrichment) a bona fide possessor as someone who
possesses ( either directly or indirectly) property of which he believes he is the
owner; a ma/a fide possessor, on the other hand, acts as if he were the owner,
while knowing that he is not. An occupier is someone who does not have the
animus domini but nevertheless occupies the property because it is in his
interest to do so. Occupiers are divided into lawful occupiers (i.e. those who
have the right to occupy the property), bona fide occupiers (i.e. those who
believe themselves to be lawful occupiers, but are not) and ma/a fide
occupiers (i.e. those who occupy property as if they are lawful occupiers, but
know that they are not)"."
[72) In Hing v Mkhabela 20 , the Court considered issues relating to acquisitive prescription
and enrichmen t claims at paragraph 83.
"[83] In Roman Law the ma/a fide possessor lost all title to any form of
improvements made to the immovable property of another.
Justinian wrote:
" ... in this case [where one builds upon the immovable property of
another] the owner of the materials loses his property, because he is
presumed to have voluntarily parted with them, that is, if he knew he
20 (2013/37921) [2017] ZAGPJHC 107 (22 March 2017)
36
was building upon another's land ... Of course, if the person who
builds is in possession of the soil, and the owner of the soil claims the
building, but refuses to pay the price of the materials and the wages
of the workmen, the owner may be repelled by an exception of do/us
ma/us, provided the builder was in possession bona fide. For if he
knew that he was not the owner of the soil, he is barred by his own
negligence, because he recklessly built on ground which he knew to
be the property of another. The Institutes of Justinian (Lib. II, Tit. 1,
§30), translation by T. C. Sanders"
[73] The abovementioned matters were considered by this Court in respect of the relevant
principles applicable to the issue of • bona fide or mala fide possessors. The
circumstances before this Court d_iffered materially in respect of the factual matrix in
relation to those cases and the outcomes of those cases. The Court a quo did not
ventilate the issue between a bona fide and a mala fide possessor, however, this
Court took cognisance of the fact that the rights the appellant sought to enforce
flowed from the Sebenza lease which by all accounts was invalid from the onset. The
appellant could not rely on acting in good faith, in that it was innocent or lacked
knowledge of the circumstance surrounding the manner in which it acquired
possession over the farms. This placed in dispute it's right to retain farms based on
the enrichment lien. Moreover, this lien was in respect of the relationship between
the appellant and Moletele CPA where by agreement these two entities contracted
on an inchoate agreement, therefore the respondents should not be prejudiced by
this lease agreement which was not contracted in good faith. Therefore, reliance on
the lien by the appellant was unmeritorious.
37
[74] Moreover, it was accepted that a lien merely conferred a right of retention and did not
entitle a party to continue using, occupying or commercially farming under the guise
of the said lien. As indicated by the Court a quo the Sebenza Lease never came into
existence as a source of a valid lease agreement and that the NDF Lease had never
been validly terminated. These findings were based on the contractual instruments,
the appellant's admissions and the statutory determinations made by the relevant
authorities . These findings by the Court a quo could not be faulted, and this Court
aligns itself with those findings.
[75] Further, it was not disputed that the enrichment lien as relied upon by the appellant
was in respect of rural property, this Court had regard to the case of Business
Aviation Corporation (Pty) Ltd and Another v Rand Airport Holdings (Pty) Ltd
21 where the Court highlighted the following:
''fl] Malpractices amongst lessees led, however, to legislation by the Estates of Holland
on two occasions, which severely restricted their right to compensation for
improvements. The first enactment was promulgated on 26 September 1658. It is to
be found in the Groot Placaet-Boeck part 2 cols 2515-2520 under the rubric 'Placaet
vande Staten van Hollandt, tegens de Pachters ende Bruyckers vande Landen'. The
provisions of this placaet were re-enacted in almost identical terms on 24 February
1696 in a 'Renovatie-placaet' (see GPB part 4 cols 465-7). Because the provisions
of the two placaeten were so similar, reference is often made to 'the placaet',
singular, meaning the earlier one of 1658 (see eg De Beers supra at 368; Rubin v
Botha 1911 AD 568 at 579; Spies v Lombard 1950 (3) SA 469 (A) at 473A and 476O
E).
21 (179105) [2006] ZASCA 68; [2007] 1 All SA 421 (SCA); 2006 (6) SA 605 (SCA) (30 May 2006) at paragraphs 7 to 9;
38
[8] Four articles of the placaeten dealt with claims for improvements, namely, articles 10
to 13. Of these the most important for present purposes was art 10, which is
translated as follows by WE Cooper Landlord and Tenant 2 ed p 329 note 3:
'Provided, nevertheless, that whenever the owner of any lands, takes them for
himself, or lets them to others, he is bound to pay the old lessee, or his heirs,
compensation for the structures, which the lessee had erected with the consent of
the owner, as well as for ploughing, tilling, sowing and seed corn, to be taxed by the
court of the locality, without, however, the lessees being allowed to continue
occupying and using the lands, after the expiration of the term of the lease, under the
pretext of (a claim for) material or improvements, but may only institute their action
for compensation after vacating (the lands).'
(For the original Dutch, see eg Cooper foe cit; Syfrets Participation Bond
Managers supra at 110/-111 A). For other, very similar, translations, see
Lee Commentary 92 and George Wille Landlord and Tenant in South Africa, 5th ed
at p 270.)
[9] The import of art 10 is clear. Though lessees retained their right to claim
compensation for improvements, the claim was limited to improvements effected with
the landlord's consent. Moreover, they lost their right of retention in the form of a lien.
At the end of the lease period, they first had to vacate the property before they could
institute their claim for compensation. Articles 11, 12 and 13 limited the lessees' right
to compensation even further. Under art 11 compensation payable for 'structures'
was restricted to bare materials, not including sand and lime, and excluding the costs
of labour. Article 12 dealt with structures erected without the landlord's consent. In
respect of these, lessees had no claim for compensation at all, though they were
allowed to break down the structures and remove the material before termination of
allowed to break down the structures and remove the material before termination of
the lease. In terms of art 13, the lessee's right to claim compensation for plantings
39
and trees was virtually abolished, in that it was limited to those planted on the
instructions of the owner and then only for the original cost of the plants (see eg
Cooper op cit p 329-330).
[76] The Placaeten would ostensibly be applicable in respect of these farms and the
enrichment lien held by the appellant would first require the appellant to vacate the
farms for there to be any enforcement of same. This was canvassed with the parties
before this Court as an ancillary issue which could feature once the appellant sought
to enforce this lien and needs no further mention.
[77] The Court a quo noted the financial consequence which the respondent would suffer
if the Order in terms of Section 18(3) were not put into operation, namely;
[77 .1] The fact that the first respondent had contracted with the Moletele CPA
already in 2017 and that this lease was expiring in 2027.
[77.2] That amidst this lease agreement being in force, the Moletele CPA contracted
with Sebenza to lease the said farms on 25 August 2025 for a period of 25
years. This lease agreement was subject to "conditions precedent" which still
needed to be fulfilled.
[77 .3] That notice of termination of the 2017 lease was given to the first respondent
by the Moletele CPA, which was accepted on the resolution of the directors of
the first respondent, which included Mr Rossouw (Sebenza's director) and Mr
Malatjie the Chairman of the Moletele CPA.
[77.4] That the first respondent vacated the farms and the appellant took occupation
and control over the farms.
40
[77.5] That the first respondent, under the leadership of Mr Rossouw (Sebenza's
director) and Mr Malatjie the Chairman of the Moletele CPA, was placed into
voluntary liquidation which ultimately was placed under business rescue by
the Court's intervention.
[77.6] Since the occupation, the respondents have been litigating to reclaim control
over the farms and their produce relying on the real harm done to the first
respondent by the abovementioned parties.
[77.7] The respondents' declarator of the validity of the 2017 lease, the eviction order
of the appellant and the preservation orders considered holistically favoured
the granting of the Section 18 (3) Court Order.
[77.8] The interest of the respondents in the revenue generated from the harvest
was necessary for the business rescue process and for the protection of
creditors and cession holders, whose interests depended on the successful
completion of the season and therefore constituted true irreparable harm.
[78] The Court a quo noted the irreparable harm as raised by the appellant to be the
following:
[78.1] The appellant had entered into an inchoate lease agreement with the Moletele
CPA on 25 August 2025, accepting the terms of that agreement.
[78.2] The appellant was involved in replacing the first respondent on all the farms
and from August 2025 to date was involved in the operations of the farms.
[78.3] That the appellant invested approximately R26 000 000,00 financially on
improvements and in the farming operations.
[78.4] That the appellant sought to enforce the enrichment lien it held over the
properties in respect of this financial investment.
41
[78.5] That the first respondent's business rescue status materially increased the
prejudice the appellant faced especially if it were evicted and subsequently
succeeded on appeal, any damages claim would rank merely as a concurrent
creditor claim against a financially distressed entity.
[78.6] The appellant further relied upon the prejudice that an immediate eviction
would occasion to employees whose rights are protected under section 197 of
the Labour Relations Act.
[78.7] That disruption of the farming operations would have prejudiced those
employees and created uncertainty that was not capable of being remedied
by a successful appeal, at a later stage.
[79] It was clear that the Court a quo considered these facts in considering that
exceptional circumstances existed in granting the Order as the irreparable harm that
the respondents would suffer outweighed that of the appellant.
The irreparable harm relied upon by the appellant flowed from contracting with the
Moletele CPA, whilst knowing there was already another lease agreement in place
and accepting to contract with strict suspensive conditions needing to be complied
with, prior to the contract coming into existence, in questionable circumstances where
the appellant through its director was actively involved.
[80] The appellant cannot raise the prejudice to be suffered by the employees of the
appellant, as the workforce of the first respondent was also subjected to a change of
employer because of this new lease, so that again is a neutral point. The issue of the
business rescue status of the first respondent was as a direct consequence of the
42
cancellation of the lease agreement. The enrichment lien was without basis and as a
consequence of the void lease agreement and therefore was a neutral aspect.
[81] The real irreparable harm would be suffered by the first respondent if the season's
crop and the funds flowing therefrom were not to materialize, on account of
circumstances that were orchestrated to cause the demise of the first respondent.
The further real prejudice that would possibly be a factor tipping the scales in favour
of the exceptional circumstances was that the respondent only had until 2027 to
utilise and operate the farms and if this order was not granted the 2017 lease would
lapse due to the effluxion of time.
[82) Having regard to all the issues canvassed in respect of the appeal in terms of Section
18(4) it was clear that the Court a quo had considered and weighed up all the aspects
relevant in the assessment of exceptional circumstances that favoured granting the
Order in terms of Section 18(3) of the Superior Courts Act 10 of 2013. This Court was
satisfied that the Order was justified in the circumstances and therefore the appeal
must fail.
RULING
[83) In light of the aforesaid, this Court is satisfied that the appellant has failed to make
out a case on appeal, and therefore the appeal in respect of both the Judgment and
Order dated 5 May 2026 and the appeal in terms of Section 18(4) of the Superior
Courts Act 10 of 2013 against the Order of 9 June 2026 are dismissed.
COSTS
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[84] Costs are in the discretion of the Court and as a general rule, follow the result. Both
parties sought Costs on attorney and client or alternatively on scale C, including the
costs of two Counsel where so employed. The matters were complex and intricate,
however, not requiring a punitive Cost Order. The appellant is ordered to pay the
costs of both appeals on scale C, including the costs of two Counsel where so
employed.
ORDER
[85] This Court makes the following order:
[85.1] The appeal in respect of the Judgment and Order dated 5 May 2026 is
dismissed.
[85.2] The appeal in terms of Section 18(4) of the Superior Courts Act 10 of 2013
against the Section 18(3) Order of 9 June 2026 is dismissed.
[85.3] The appellant is ordered to pay the Costs of both appeals on scale C, including
the costs of two Counsel where so employed.
K.L. PILLAY J
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
!CONCUR,
I CONCUR ,
APPEARANCES:
FOR THE APPELLANT
INSTRUCTED BY
FOR THE 1.ST & 3RD RESPONDENT
INSTRUCTED BY
44
LIMPOPO DIVISION, POLOKWANE
L.A. NKOANA AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
Adv. Sasson with Adv Strydom
Jaco Roos Attorneys Inc
c/o Pratt Luyt & De Lange Attorneys
Adv. Martins
WJJ Badenhorst Inc
Du Toit, Swanepoel, Steyn & Spruyt
Attorneys