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[2015] ZAWCHC 141
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De Villiers v Elspiek Boerdery (Pty) Ltd and Another (16138/2012) [2015] ZAWCHC 141 (9 October 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
number: 16138/2012
DATE:
09 OCTOBER 2015
In
the matter between:
MPR
DE
VILLIERS
....................................................................................................................
Plaintiff
And
ELSPIEK
BOERDERY (PTY)
LTD
.............................................................................
First
Defendant
REGISTRAR
OF DEEDS, CAPE
TOWN
................................................................
Second
Defendant
JUDGMENT
Before:
The Hon. Mr Justice Binns-Ward
Hearing
dates: 17-19 March; 5 October 2015
Judgment
delivered: 9 October 2015
BINNS-WARD
J:
[1]
In this matter, the plaintiff, Matthys
Pieter Ruben De Villiers of the farm Elspiek at De Doorns, instituted
action for the following
substantive relief:
1.
An order declaring the notarial contract
annexed to the particulars of claim as annexure 1 (‘the
contract of lease’),
as well as the notarial cession of the
lease (‘the cession agreement’), annexed to the
particulars of claim as annexure
3, to be void;
2.
An order authorising and directing the
Registrar of Deeds (the second defendant) to deregister the contract
of lease and the cession
agreement;
3.
An order declaring the plaintiff to be
entitled as against the first defendant (Elspiek Boerdery (Pty) Ltd,
hereafter referred to
simply as ‘the defendant’) to its
eviction from the property described in paragraph 5 of the
particulars of claim and
for its eviction should it fail to vacate
the property within such period as the court might deem meet.
The
defendant raised a contingent claim in reconvention in terms of
which, in the event of the plaintiff’s claim being upheld,
it
would seek to enforce its rights in terms of an alleged improvement
lien over the property. By agreement between the parties,
the
trials of the claim in convention and the counterclaim were separated
in terms of rule 33(4). Counsel were agreed that
the practical
effect of the separation was that the relief sought by the plaintiff,
as described in item 3, above, could not be
granted until after the
later determination of the claim in reconvention, if the case
proceeded that far.
[2]
The
plaintiff is, and has at all material times been, the registered
owner or co-owner of four registered land units at De Doorns;
namely,
Erf 1466 De Doorns, the remainder of Erf 1468 De Doorns (in which he
owns a one third undivided share), the remainder of
Erf 1471 De
Doorns, and the remainder of the Farm Groot Hoek No. 70 (in
which he also owns a one third undivided share).
By reason of a
condition previously imposed by the Minister of Agriculture in terms
of the Subdivision of Agricultural Land Act
70 of 1970 (‘the
Subdivision Act’), the aforementioned properties may only be
dealt with together as if they were a
single land unit
notwithstanding that they are not mutually contiguous.
[1]
It is common ground that the land units (to be referred to hereafter
collectively as ‘the property’) are agricultural
land
within the meaning of the Subdivision Act.
[3]
A 99-year lease has been registered in
favour of the defendant against the title deeds of the property.
The lease was registered
in terms of a power of attorney executed by
the plaintiff on 13 October 2008. The power of attorney
provided as follows:
SPESIALE
VOLMAG OM NOTARIëLE AKTE TE VERLY
Ek,
die ondergetekende,
Matthys
Pieter Ruben de Villiers
Identiteitsnommer
591023 5044 08 3
Getroud
buite gemeenskap van goed
nomineer,
konstitueer en stel hiermee aan Ronelle Miller met mag van
substitusie om my/ons wettige Agent te wees om voor ’n
Notaris
Publiek in die Provinsie van die Kaap die Goeie Hoop te verskyn en
dan en daar as my/ons gemagtigde ’n Notariële
Akte te
teken volgens die konsep hierby aangeheg, welke konsep deur my/ons
geparafeer is vir die doeleindes van identifikasie,
en om sodanige
formele wysigings op die gemelde Notariële Akte aan te bring as
wat nodig mag wees vir die doeleindes van die
registrasie daarvan,
en
in die algemeen, ten einde voorgenoemde doeleindes uit te voer, te
doen of te laat doen al wat nodig is, net so volmaak en doeltreffend
asof ek/ons self teenwoordig was en hierin gehandel het, en ek/ons
bekragtig hiermee alles wat my/ons genoemde Prokureur en Agent
uit
krag hiervan wettiglik doen of laat doen.
Geteken
te
De
Doorns
op
13
Oktober
2008.
[2]
As
getuies:
1.
[signed]……………………..
2.
[signed]……………………….
[signed]………………
M
P R de Villiers
[4]
The document upon the terms of which the
lease in question was notarially executed and registered was signed
by the plaintiff and
De Kock in May 2009. I shall refer to it
as ‘the draft’. According to the tenor of the draft
(which is
annexure 2b to the particulars of claim), the lessor is the
MPR de Villiers Family Trust (‘the Trust’), with the
defendant
being reflected as the lessee.
[5]
The draft contains certain recordals in the
preamble that are material in the context of the dispute that has
emerged, namely –
1.
that the party named therein as the lessor
(i.e. the Trust) is the owner of the property;
2.
that the lessee (i.e. the defendant) had in
terms of an agreement between itself and the lessor been running the
farming business
on the property, was currently investing in the
property, and intended further investing in the property in the
future;
3.
that the lessee desired security for the
investment it had made in the land and would make in the future,
together with security
of tenure to continue with the conduct of the
farming business thereon
4.
that the parties had agreed to ‘formalise’
the lessee’s interests in the property and the farming business
conducted
on the property.
The
draft was signed by the plaintiff as lessor, his signature appearing
above the words ‘MPR de Villiers Familietrust’,
and by Mr
Gerhard De Kock (‘De Kock’), whose signature appeared
above the defendant company’s name, ‘Elspiek
Boerdery
(Edms) Bpk’.
[6]
The notarially executed and registered
lease faithfully replicated the terms of the draft signed by the
plaintiff and De Kock in
May 2009, save that the lessor was reflected
not as the Trust, but as the plaintiff, personally. The
notarised execution
of the contract, which happened only in January
2010, appears to have been done by Ms Ronelle Miller, purportedly
acting in terms
of the special power of attorney described in
paragraph [3], above. The amendment of the description of
the parties
to record the plaintiff, rather than the Trust, as the
lessor appears to have been done purportedly in terms the provision
in the
power of attorney that authorises the agent to make such
formal amendments (‘
formele
wysigings
’) as might be necessary
to obtain the registration of the contract.
[7]
The declaratory relief described in
paragraph [1].1, above, was sought in the first instance on the basis
that the notarised execution
and registration of the lease had not
been authorised by the plaintiff. The relevant allegations are
set forth in paragraph 8
of the amended particulars of claim as
follows:
8. Die huurkontrak
(gemeld in paragraaf 6 hierbo) is deur die agent, steunende op die
volmag (aanhangsel 2(a)(i) en (ii)) en die
notariële huurkontrak
(aanhangsel 2(b)), namens Eiser, as verhuurder, en Eerste Verweerder,
as huurder voor die notaris verly
en geteken, waarvoor daar geen
magtiging of bevoegdheid deur Eiser aan die agent verleen is of
bestaan het nie, aangesien:
8.1 Die volmag nie
die notariële huurkontrak as aanhangsel gehad het nie;
8.2
Die volmag, wat Eiser verleen het, betrekking gehad het op die
notariële akte in die volmag vermeld, wat nie die notariële
huurkontrak was, of kan wees nie.
[3]
[8]
The allegations in paragraph 8 of the
particulars of claim fall to be considered in the context of the
facts as they were established
by the oral evidence of De Kock, who -
at the instance of the first defendant - was the only witness to
testify at the trial, and
the documentary record in the trial bundle
(exhibit A) put in by the parties, to which it was ultimately agreed
I might have regard
for the purpose of deciding the case, and, of
course, the admitted or common cause facts. The background
history may be summarised
as follows (I have simplified the facts in
certain respects for brevity and clarity; the omitted detail is not
relevant for the
adjudication of the case):
1.
The plaintiff had approached De Kock for
financial advice many years ago at a time when he had been under
pressure from one of his
brothers to repay a loan. In terms of
the arrangements made at that stage, the plaintiff and De Kock agreed
that De Kock
would control and manage the property. For that
purpose an agreement of lease between the plaintiff and a company
controlled
by De Kock, Cape Orchard Company (Pty) Ltd (‘Cape
Orchard’) was concluded on or about 1 July 2001 for a period of
five
years, renewable for a further period of four and a half years.
The lease was in respect of only the two smaller registered
land
units making up the property, which were planted with vineyards or
developed with housing for the farm workers. The
lease
contained special terms that obliged the lessee to work and improve
the property and to afford the plaintiff a share in the
proceeds of
the farming enterprise to be conducted on the farm by the lessee.
The arrangement enabled the plaintiff to remain
living on the
property and to maintain his family.
2.
On 20 November 2003, the plaintiff and Cape
Orchard also executed a written agreement of loan, which recorded
that the plaintiff
was already indebted to Cape Orchard at that stage
in an amount of approximately R531 000.00. The rental payable
to the plaintiff
by Cape Orchard in terms of the lease was offset
against the capital owed and the interest accruing to Cape Orchard in
terms of
the loan.
3.
De Kock subsequently realised that the
interest accruing to Cape Orchard was exceeding the rental due by the
company to the plaintiff
and that the plaintiff’s financial
woes were generally increasing. In or about 2006, De Kock
concluded that the plaintiff
did not have the means to repay the
loan, and would only be able to do so if the property were sold.
4.
De
Kock and the plaintiff then agreed upon an arrangement in terms
whereof the property would be sold to a company. The
arrangement
contemplated that the majority of the shares in the
company would be held by a trust to be established to represent the
plaintiff’s
family’s interests and that the remainder of
the shares would be held by Cape Orchard, representing De Kock’s
interests.
The Trust was duly established, with the plaintiff
and De Kock as the co-trustees; and the defendant company was
acquired for the
purpose of purchasing and holding the property.
A 74/26 division of the allocated shares in the defendant company
between
the Trust and Cape Orchard, respectively, was determined
upon. The extent of the respective holdings in the defendant
was
settled with regard to (i) the ratio of the amount of the
plaintiff’s debt to the value of the property and (ii) the
need for Cape Orchard to hold sufficient shares to be able to block
any disposition of the property by the defendant company against
Cape
Orchard’s wishes.
[4]
5.
An agreement to implement the
aforementioned arrangement was concluded on 31 Augustus 2006
between the Trust, Cape Orchard
and the defendant company. It
provided that the defendant, having acquired the property, would
lease it to Cape Orchard,
the rental being set off against the amount
owed to Cape Orchard by the Trust and/or the plaintiff.
6.
The implementation of the agreement
required the co-operation of the plaintiff’s two brothers, who
enjoyed rights of pre-emption
over part of the property. One of
the brothers declined to waive his right of pre-emption. It
would appear from correspondence
in the trial bundle that this must
have happened sometime between 13 and 23 October 2008. The
agreement consequently could
not be carried through and it was
cancelled. De Kock or Cape Orchard thereafter acquired the
entire shareholding in the defendant
company and the Trust continued
in existence only in name. Indeed, De Kock testified that the
trustees never held a meeting
at any stage. Notwithstanding the
failure of the sale agreement, De Kock continued to provide for the
plaintiff and his family.
7.
The aforementioned power of attorney
document was executed by the plaintiff in October 2008 for the
purpose of enabling the registration
of a right of pre-emption in
favour of the plaintiff’s brothers over the property to be
acquired by the defendant company
in terms of contemplated sale
described earlier. The idea had been that the contemplated
rights of pre-emption would replace
those that the brothers had
previously enjoyed in the property against the plaintiff. The
annexed draft (‘
konsep
’)
referred to in the power of attorney was the relevant contract
pertaining to the cancellation of the pre-existing rights
of
pre-emption and the creation and registration of the replacement
rights of pre-emption; it was obviously
not
the notarial lease described in paragraph [4], above, which at that
stage had not even been conceived of.
8.
After the arrangement to sell the property
to the defendant was frustrated, it was decided instead to enter into
a 99-year lease.
A registered 99-year lease would afford the
defendant the security De Kock required and, if it were in respect of
the whole
property (i.e. all four registered land units), would
not require the consent of the Minister of Agriculture in terms of
the
Subdivision Act.
9.
It was the common intention of the
plaintiff and De Kock that the plaintiff and his wife should not lack
for a roof over their heads
and that, notwithstanding the conclusion
of a 99-year lease agreement, they should have the right to continue
living in the dwelling
house on the property for as long as they
might wish.
10.
In or about May 2009, the plaintiff signed
a document entitled ‘Notarial Contract of Lease’
(‘Notariële Huurkontrak’).
This was the draft
referred to earlier (at paragraph [4], above). It is plain that
the draft was signed for the purposes
of obtaining the notarial
execution of a lease in accordance with the provisions of the
document. The introductory section of the
draft went as follows:
Protokol Nr:
NOTARIËLE
HUURKONTRAK
Hiermee
word bekend gemaak dat op 2009
Voor
my, Christiaan Ludolph Nelson Fick, Notaris van Kaapstad, behoorlik
beëdig en toegelaat, in die teenwoordigheid van die
ondergetekende getuies, persoonlik verskyn het Ronelle Miller,
agerende as die agent van
1.
Die Trustees van die MPR de Villiers
Familietrust (IT 3300/2006)
herein
verteenwoordig deur Matthys
Pieter
Ruben de Villiers
Heirna
die “Verhuurder” genome)
kragtens
’n volmag aan haar verleen te De Doorns op 13 Oktober 2008
En
as agent van
2.
Elspiek Boerdery (Edms) Bpk
…
.
hierin
verteenwoordig deur
Gerhardus Hager de Kock
…
.(hierna
die Huurder genoem)
kragtens
’n volmag aan haar verleen te 13 Oktober 2008
welke
Volmagte in my protokol geliaseer is;
En
die partye verklaar dat:
NADEMAAL
die Verhuurder die geregistreerde eienaar is van
[5]
1…..
(a deeds office description of the four
registered land units comprising the property was then set out).
(Underlining
supplied for highlighting purposes.)
[9]
It is apparent then that the 99-year lease
agreement had not been in contemplation by the parties when the
special power of attorney
was executed in October 2008 and a
different draft contract (described in paragraph [8], above) had been
annexed to the power of
attorney document when it was executed.
The same power of attorney document was, however, used when the
‘Notarial Contract
of Lease’ document was signed by the
plaintiff in May 2009. It was the ‘
volmag
aan haar verleen te De Doorns op 13 Oktober 2008
’
referred to in the introduction to the ‘Notarial Contract of
Lease’ document quoted above. If regard is
had to the
wording of the power of attorney, it is evident that it was equally
amenable for use with the document signed in May
2009 as an annexure
as it had been for the originally annexed registration of pre-emptive
right agreement. The character
of the attached draft (‘
konsep
’)
is not specified in the wording of the power of attorney and
therefore the nature of the authority granted thereby falls
to be
determined by reading it with the attachment. The two documents
have to be read together as a composite instrument.
[10]
The
plaintiff’s case appears to rest on the contention that because
the special power of attorney was originally executed
for a different
purpose (i.e. the registration of rights of pre-emption pursuant to
the contemplated sale of the property to the
defendant), it could not
serve as authority for the purpose of notarially executing and
registering the 99 year lease.
[6]
In my judgment there is no merit in that contention. It follows
clearly from the words ‘
kragtens
’n volmag aan haar verleen te De Doorns op 13 Oktober 2008
’
in the ‘Notarial Contract of Lease’ document signed by
him in May 2009 that the plaintiff had decided to employ
the special
power of attorney document for a different purpose after it had
become clear that the sale contract contemplated earlier
had become
frustrated. From a practical point of view there was nothing
exceptionable about such economy of documentation.
[11]
The power of attorney did not, in itself,
constitute the authority given by the plaintiff, qua principal; it
merely served as evidence
of the grant of the authority.
Whether authority for the particular transaction was indeed granted
in accordance with the
tenor of the power of attorney document is a
question of fact. There was no suggestion in the evidence that
the plaintiff
had executed any other power of attorney on 13 October
2008. It is thus evident from the aforementioned reference in
the
‘Notarial Contract of Lease’ signed by him in May
2009 to the power of attorney document executed by him in October
2008 that it had subsequently been adopted by him to represent to the
notary that Ms Ronelle Miller was authorised to represent
him in
the execution of the notarial deed of lease for the purpose of
enabling the registration of the 99-year lease. It
did not
matter that the power of attorney document had originally been
drafted and brought into being for a quite different purpose.
[12]
The plaintiff’s counsel submitted,
however, that a special power of attorney lapses when the act to
which it is directed has
been carried out or has fallen away. The
implication was that the power of attorney document executed by the
plaintiff in
October 2008 ceased to have effect when the idea of
registering the cancellation and substitution of pre-emptive rights
in favour
of his brothers fell away. The argument is correct
only insofar as it pertains to the power of attorney read as it was
with
the original annexure. It ignores the effect of the
plaintiff having subsequently used the power of attorney document
with
a different attachment. The latter act evidenced a
separate juristic act in respect of the grant of authority for a
quite
different purpose. As noted, the power of attorney
document is indeed ineffectual unless construed with an attachment
initialled
by the principal for identification. The plaintiff’s
act of annexing first one such attachment to the power of attorney
and then subsequently using the same document with a different
attachment for a different purpose resulted in the bringing into
being of two entirely distinguishable composite instruments.
[13]
The
plaintiff did not volunteer any evidence to detract from or
contradict the effect of the reference to the October 2008 power
of
attorney in the draft signed by him in May 2009; nor could he.
The evidence thus established that the plaintiff did in
fact
authorise Ms Miller to act as his agent in the execution of the
notarial lease. It is evident from the content
of the documents
in the notary’s protocol, which were included in the trial
bundle,
[7]
that the ‘Notarial
Contract of Lease’ must indeed have been annexed to the power
of attorney executed by the plaintiff
that was presented to the
notary.
[14]
In my judgment the plaintiff has therefore
failed to establish the allegations pleaded in sub-paragraphs 8.1 and
8.2 of his amended
particulars of claim.
[15]
Furthermore, if regard is had to the
factual background described above, the identification of the lessor
in the Notarial Contract
of Lease as the Trust, rather than the
plaintiff personally, was plainly a mistake. The draft
contained a declaration that
the lessor is the registered owner of
the property and the power of attorney document to which it was
attached purports to record
a grant of authority by the plaintiff
personally, and not in his capacity as a trustee. The Trust had
never been the registered
owner of the property, and it had never
been provided in the various arrangements contemplated by the parties
that it should become
such. There is therefore no reason to
doubt De Kock’s uncontroverted evidence that the description of
the Trust as
the lessor in the draft executed by him and the
plaintiff in May 2009 was a common mistake.
[16]
The
plaintiff’s counsel sought to resist that conclusion by relying
on the fact that the Trust had been referred to as the
lessor in a
number of other documents. In my view there is nothing to be
made of that in the peculiar factual context.
The perpetuation
or repetition of a mistake does not alter the fact that it remains a
mistake. No plausible reason existed
for the Trust to be the
lessor, and if it had nevertheless indeed actually been intended that
it should be, the plaintiff failed
to give evidence to that effect.
Had he ventured into the witness box, he would probably have been
hard pressed to explain
why he had signed a declaration that the
Trust was the registered owner of the property when he must have been
well aware that
the land units comprising it were registered in
his
name.
[8]
He would have
encountered similar difficulty in explaining the recordal of the
previous agreement concerning the running
of the farming operation on
the farm, to which he, and not the Trust, had been party.
[9]
[17]
The plaintiff’s counsel submitted
that it had in any event been beyond the agent’s powers to
amend the signed deed to
reflect the identity of the lessor as the
plaintiff, instead of the Trust as indicated in the draft. The
defendant’s
counsel countered that this had been done within
the agent’s authority to effect ‘formal amendments’.
It
is not necessary, in my view, to decide whether the amendment was
indeed of a formal nature. It is evident, however, that
registration of the contract could not have been effected without the
amendment, as the Trust was not the registered owner of the
property. It is also clear from the factual history outlined
above that the draft was in any event susceptible to rectification
and in the circumstances the agent’s dealing with it
consistently with that susceptibility is not a matter that the
plaintiff
can rely on to have the contract or its registration
declared void. There is no doubting on the evidence that was
adduced
that the registered contract, with the plaintiff as lessor,
reflects the common intention of the parties.
[18]
It is not necessary in the light of that
conclusion to consider the defendant’s alternative defences
based on estoppel and
ratification. It does bear mention,
however, that my conclusion that the registration of the agreement
was duly authorised
by the plaintiff and reflects the parties’
common intention is supported by the plaintiff’s subsequent
conduct.
On 28 April 2010, he executed a special power of
attorney authorising Janetha Willemina Gertruida Botha to act on his
behalf to
execute a notarised deed of cession of the notarial lease
and to do everything necessary to obtain the registration of the
cession.
The draft ‘Notariële Sessie van Notariële
Huurkontrak’ attached to the power of attorney referred to the
plaintiff as the lessor and, just as the draft executed by him in May
2009 had done, set forth a declaration that he was the owner
of the
property that had been let. A cession of the lease to a third
party was duly registered pursuant to the authority
so provided by
the plaintiff. The plaintiff offered no explanation for his
conduct in respect of the cession. It was
wholly irreconcilable
with the case he has now sought to advance that the lease had been
notarially executed and registered without
his authority.
[19]
As a second string to his bow, the
plaintiff pleaded that the registered lease was in any event void by
reason of the effect of
the provisions of 3(d) of the Subdivision
Act. The relevant allegations were set out in paragraphs
12-14 of the particulars
of claim as follows:
12.
Op ’n behoorlike uitleg verleen die
huurkontrak die reg van gebruik aan Eerste Verweerder van daardie
gedeelte van die eiendom,
met uitsluiting van die woonhuis en van
sekere buitegeboue daarop, terwyl daardie gedeelte waarop die
woonhuis en die relevante
buitegeboue geleë is, nie deur deur
Eerste Verweerder gehuur word nie, maar ingevolge die huurkontrak
deur die verhuurder
uitgehou word vir gebruik.
13.
Die Minister, soos bedoel in die Wet, het
nie skriftelike toestemming verleen vir die huurkontrak, waarvan die
termyn langer as
10 jaar is en ten opsigte van ’n deel van die
eiendom aangegaan is nie.
14.
In
die vooropstelling is die huurkontrak nietig en is Eiser geregtig op
die deregistrasie daarvan.
[10]
[20]
It is well-established that the Subdivision
Act prohibits the letting of only a portion, as distinct from the
whole of any registered
land unit that is ‘agricultural land’,
as defined in s 1 of the Act, without the prior consent of the
Minister
of Agriculture. Section 3(d) of the Act provides:
Prohibition
of certain actions regarding agricultural land
Subject
to the provisions of section 2
[11]
-
(d)
no lease in respect of a portion of agricultural land of which the
period is 10 years or longer, or is the natural life of the
lessee or
any other person mentioned in the lease, or which is renewable from
time to time at the will of the lessee, either by
the continuation of
the original lease or by entering into a new lease, indefinitely or
for periods which together with the first
period of the lease amount
in all to not less than 10 years, shall be entered into unless the
Minister has consented in writing.
It
is common cause that the property is agricultural land. It is
also not in dispute that the consent of the Minister of Agriculture
to the conclusion of the lease was not sought or obtained.
[21]
The allegations pleaded in paragraphs 12-14
of the particulars of claim fall to be assessed against the
provisions of the lease.
The plaintiff’s counsel relied
for the argument that the defendant had leased only part of the
property on the provisions
of clause 2 read with clause 16.
Those clauses provide as follows:
2
VERHURING VAN DIE EIENDOMME
2.1
Die eiendomme wat bekend staan as die plaas Elspiek, word verhuur
saam
met die pakstore, gifkamer, kunsmisstoor, trekkerstoor en
arbeidershuise asook die roerende goed en aanhegtings, wat kragpunte,
pompe, pype en ander toerusting implemente insluit, soos wat dit tans
op die plaas Elspiek is en gebruik word vir boerdery op die
plaas of
wat nuttig daarvoor gebruik kan word, asook die toegang tot alle
water vir menslike en boerdery gebruik, waarop die plaas
Elspiek
geregtig is, en die gebruik van alle wingerde en ander gewasse wat
bestem is of aangewend kan word om inkomste mee te verdien.
2.2
Die eiendomme word aan Huurder verhuur vir die doel om
boerderybedrywighede
daarop te beoefen vir sy eie rekening, spesifiek
vir die doel van die verbouing van tafeldruiwe en gebruik die
huurgoed vir geen
ander doel as wat met die boerdery en verwante
bedrywighede verband hou nie.
2.3
Die Huurder gebruik die water waarop die plaas Elspiek geregtig is en
wat beskikbaar is of kan kom, vir huishoudelike en
besproeiingsdoeleindes en vir geen ander doel nie. Water
word gebruik
binne die raamwerk van die regte en verpligtinge wat
kontraktueel of van owerheidsweë daarvoor geld.
2.4
Die Huurder mag dooie hout wat daarvoor bestem is vir huishoudelike
gebruik
deur bewoners van die plaas Elspiek sny of oes, maar mag dit
nie verkoop of daarin handel dryf nie.
2.5
Die Huurder sal die wingerde op die plaas soos ‘n sorgsame
eienaar
in die omgewing van De Doorns bewerk, boer, bestuur en
bedryf.
2.6
Die Huurder mag wingerde of ander meerjarige aanplantings net vervang
met die toestemming van die Verhuurder, welke toestemming nie
onredelik weerhou sal word nie.
2.7
Die Huurder sal toerusting, implemente en ander aanhegtings net
gebruik
of laat gebruik vir waarvoor dit bestem is, sal dit soos ‘n
sorgsame eienaar laat diens en in stand hou en besorg dit by die
afloop van die huurtermyn aan die Verhuurder teruggee in dieselfde
goeie toestand as waarin hy dit met die aanvang van die huurtermyn
gekry het, redelike verweer deur gebruik en tyd uitgesluit.
2.8
Die Huurder sal wonings, pakkamers, store ens. op die plaas soos ‘n
sorgsame eienaar gebruik en laat gebruik en sal dit op eie koste na
behore in ‘n netjiese toestand in stand hou en by die
afloop
van die huurtermyn aan die Verhuurder teruggee in dieselfde goeie
toestand as waarin hy dit met die aanvang van die huurtermyn
ontvang
het, redelike verweer deur tyd uitgesluit.
2.9
Die partye bevestig dat die Verhuurder nie verplig sal wees om
toerusting,
implemente of ander roerende goed, wat deel uitmaak van
wat verhuur word, te vervang wanneer dit deur gebruik, tydsverloop of
deur
oornag onbruikbaar of ongeskik geraak het vir die doel waarvoor
dit aangeskaf en verhuur word nie. Die Huurder is nie
geregtig op enige vermindering in die huurgeld as gevolg hiervan nie.
2.10
Die Huurder sal die plaas Elspiek binne die raamwerk van die
titelvoorwaardes, kontraktuele
regte en verpligtinge en voorskrifte
van owerheidsweë boer en gebruik.
[12]
16.
WOONHUIS EN WERF
Die
Verhuurder behou die reg voor om in die woonhuis op die eiendom te
bly en die buitegeboue op die werf (behalwe daardie buitegeboue
wat
deur die Huurder gebruik word vir die normale boerderydoeleindes)
te gebruik vir solank as wat hy en/of sy vrou lewe
of totdat hulle
besluit om te verhuis.
Die
Verhuurder is verantwoordelik vir die onderhoud en instandhouding van
die woonhuis en geboue wat hy gebruik en vir betaling
van alle
dienste wat aan die woonhuis en geboue gelewer word.
[13]
[22]
The
properties (‘
eiendomme
’)
that are the subject of the lease are defined in clause 1 of the
contract as ‘
die
eiendomme soos in die aanhef beskryf, welke eiendomme tans deur die
Verhuurder besit word
’.
[14]
The definition is subject to the following qualification in
sub-clause 1.1:
In
hierdie ooreenkoms, behalwe indien ‘n verskillende mening
duidelik bedoel word, sal die vogende woorde en/of frases die
volgende ooreenstemmende betekenis hê:
[15]
The
properties described in the preamble to the agreement are the four
registered land units that make up Elspiek Farm.
[23]
In my view the argument that the defendant
leased only part of the farm is contrived and finds no support upon a
proper construction
of the contract. The farmhouse and ‘
werf
’
are not excluded from the lease. The lessor has the right to
reside in the house for as long as he wishes, and to
use the
outbuildings on the ‘
werf
’
to the extent that they are not required for the lessee’s
farming operations. The fact that the lessor’s
right to
reside on the farm does not derogate from the lease being in respect
of the entire property - as indeed expressly worded
- is borne out by
a number of features of the lease, namely –
1.
The extent of the property subject to the
lease will not be altered when the lessor vacates the farm house or
dies before the expiry
of the 99 year term of the contract; this is
because the house and outbuildings are subject of the lease from
inception.
Clause 16 merely reflects a temporary and very
limited restriction of the lessee’s right of use of the whole
property
in terms of the lease
.
(Whether the nature of the limitation is one that attracts the effect
of the Subdivision Act will be considered presently,
in relation to
the effect of s 3(e) of the Act.) That the lessor’s
right to live in the farm house was subordinate
in terms of the lease
to the lessee’s overarching rights in terms of the contract is
confirmed by the fact that the lessor
has no right to use or deal
with the house if he vacates it. He cannot let it or give any
right to the use and enjoyment
of it to any third party. Those
limitations on his ability to use the house during the currency of
the lease arise because
he has let the whole property to the
defendant subject to the provisions of the lease. They confirm
that no part of the property
was excluded from the lease.
2.
The provisions of clause 2 construed in the
context of the contract as a whole make it plain that the lease
comprehends and is directed
at providing for the use and enjoyment by
the lessee of the entire property for its farming enterprise; and
nothing about the right
reserved to the lessor in terms of clause 16
to remain living in the farm house detracts from the efficacy of
those provisions.
It is clear that the defendant has leased the
whole of the four registered land portions comprising the farm as a
single economic
unit and intended to use it as such.
3.
The lessee’s obligation in terms of
clause 8.1 to keep all improvements on the properties insured at
replacement value against
all risks does not exclude the house
occupied by the lessor or such outbuildings on the ‘werf’
as the latter might
use.
4.
Clause 4.5 of the lease provides that the
rental payable by the lessee will be adjusted annually to the extent
of any increase in
the property tax payable on the property. It
is plain that this provision relates to the whole of the property,
including
any increases in tax calculated with reference to its value
including the farm house and any outbuildings that might be used by
the lessor.
[24]
The
plaintiff’s counsel emphasised in their argument that a lease
is a contract for the use and enjoyment of a thing for a
period and
for consideration (rent). They cited the statement in Joubert
et al (ed),
LAWSA
Second Edition
vol.14 part 2, at para 2(a), that ‘(t)
he
subject matter of a contract of lease is
not
the leased property itself
but
the
use and enjoyment thereof
’
in support of the proposition.
[16]
The characterisation contended for by the plaintiff’s counsel
is borne out by the authorities cited there:
Genac
Properties JHB (Pty) Ltd v NBC Admin CC (previously NBC Admin (Pty)
Ltd)
[1991] ZASCA 188
;
1992 (1) SA 566
(A) at 576D-G and
Oatorian
Properties (Pty) Ltd v Maroun
1973 (3) SA 779
(A) at 785. But it is important to properly
understand the concept of ‘use and enjoyment’ in the
peculiar context.
The relevant passage in LAWSA and that in the
judgment in
Oatorian
Properties
were premised on Pothier’s
Treatise
on the Contract of Lease
at para 22. In
Oatorian
Properties
,
Potgieter JA quoted Mulligan’s translation of Pothier as
follows:
22.
It is of the essence of the contract of lease that there be a certain
enjoyment or a certain use of a thing which the lessor
undertakes to
cause the lessee to have during the period agreed upon, and it is
actually that which constitutes the subject and
substance of the
contract.
The
kind of enjoyment which is conferred by the lease either is or is not
stated therein. When it is stated, the lessee may not
put the thing
to a use other than to that stated in the lease.
[25]
The kind of enjoyment expressly conferred
by the lease in the current matter is in respect of the use of the
entire property for
the lessee’s farming enterprise. The
reservation of a right to the lessor to live in a house on the
property and use
outbuildings not required for the purpose of the
defendant’s farming activity does not detract from the ‘kind
of enjoyment’
contracted for by the lessee.
[26]
The plaintiff’s argument in this
respect in any event fundamentally missed the point in my view.
When it comes to considering
whether the provisions of s 3(d) of
the Subdivision Act are implicated, the vital consideration
is
,
in fact, the extent of the agricultural land that is subject to the
lease. The provision is directed at regulating the lease
of ‘
a
portion of agricultural land
’.
The Supreme Court of Appeal’s judgment in
Adlem
and Another v Arlow
2013 (3) SA 1
(SCA)
serves to confirm that what is meant by the term ‘
a
portion of agricultural land
’ in
s 3(d) s 3(e)(i) and (ii) of the Subdivision Act is ‘
a
piece of land that forms part of a property registered in the Deeds
Registry;…
In other words,
the word “portion” in, inter alia, s 3(d) must be
interpreted as meaning a part of a property (as opposed
to the whole
property) registered in the Deeds Registry…
’
.
See
Adlem
,
at para 13.
[27]
As appears from the long title to the Act,
its object is ‘To control the subdivision
and,
in connection therewith,
the use of
agricultural land’. (I have inserted the italicisation to
emphasise the material significance of the italicised
phrase
acknowledged in
Adlem
supra,
at para 12, where Cloete JA noted that ‘…
what
is sought to be controlled is not both the subdivision and also the
use of agricultural land, but the subdivision and,
in
connection therewith
, the use of
such land. The Act does not confer on the minister the power to
control the use of agricultural land absent a contemplated
subdivision, whether in the literal sense as envisaged in s 3(a) and
(e)(i), or the extended sense as envisaged in s 3(d) (a lease
for 10
years or longer) and 3(e)(ii) (a right for 10 years or longer)
.’
(Emphasis in the original.)
[28]
The learned judge of appeal made the
observation quoted in the preceding paragraph after having reviewed
(in para 9 of the
judgment) the objects of the statute with
reference to a number of well-known earlier judgments concerning its
interpretation.
It would be a supererogation to try to
reproduce in my own words the comprehensive but succinct summary of
the relevant jurisprudence
given there:
[9]
The purpose behind the Act has been dealt with in a number of
decisions. In
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd
2009
(1) SA 337
(CC)
(2008 (11) BCLR 1123
;
[2008] ZACC 12)
the
Constitutional Court said in para 13:
'The
essential purpose of the Agricultural Land Act has been identified as
a measure by which the legislature sought in the national
interest to
prevent the fragmentation of agricultural land into small uneconomic
units. In order to achieve this purpose the legislature
curtailed the
common-law right of landowners to subdivide their agricultural
property. It imposed the requirement of the Minister's
written
consent as a prerequisite for subdivision, quite evidently to permit
the Minister to decline any proposed subdivision which
would have the
unwanted result of uneconomic fragmentation.'
In
Geue and Another v Van der Lith and Another
[2003] ZASCA 118
;
2004 (3) SA 333
(SCA) ([2003]
4 All SA 553)
this court said, in paras 5 and 15:
'(T)he
learned Judge commenced his motivation by identifying the essential
purpose of the Act as an attempt by the Legislature,
in the national
interest, to prevent the fragmentation of agricultural land into
small uneconomic units. This proposition, incidentally,
is well
supported by authority (see, for example,
Van
der Bijl and Others v Louw and Another
1974 (2) SA 493
(C) at 499C – E;
Sentraalwes
Personeel Ondernemings (Edms) Bpk v Wallis
1978 (3) SA 80
(T) at 84E – F; and
Tuckers
Land and Development Corporation (Pty) Ltd v Truter
1984 (2) SA 150
(SWA) at 153H-154A). In order to achieve this
purpose, the Legislature curtailed the common-law right of landowners
to divide their
agricultural property by imposing the requirement of
the Minister's consent as a prerequisite for subdivision, quite
evidently
with the view that the Minister should decline any proposed
subdivision which would have the unwanted result of uneconomic
fragmentation.
.
. .
The
purpose of the Act is not only to prevent alienation of undivided
portions of land. The target zone of the Act is much wider.'
The
broadening of the 'target zone' of the Act by the amendment of its
terms was dealt with in
Tuckers Land and Development Corporation
(Pty) Ltd v Wasserman
1984 (2) SA 157
(T) at 162B – D where
the court held:
'In
this connection it seems to me to be of some importance to bear in
mind that s 3 in its original form included only paras
(a), (b)
and (c), which were repeated in the same form in the 1974
substitution quoted earlier. It seems to me to be a clear inference
that the Legislature in 1974 considered that the existing three
paragraphs were not sufficient by themselves to prevent the mischief
of the division of agricultural land into uneconomic units, and
therefore that it found it necessary in addition to prohibit (inter
alia) long leases of portions of agricultural land and the sale of
erven (whether surveyed or not) on such land. In other words,
in my
view, the primary purpose of the extension of the prohibitions in the
section was to improve the means of achieving the original
purposes
of the Act . . . .'
In
Tuckers Land and Development Corporation (Pty) Ltd v Truter
1984 (2) SA 150
(SWA) the court held at 153G – H and 154B –
C:
'The
basic object and purpose of the Act was obviously to prevent the
subdivision of agricultural land into uneconomic portions.
The long
title of the Act, prior to its amendment by s 9 of Act 55 of 1972,
was ‘To control the subdivision of agricultural
land’,
and this was changed by the amending section referred to, the long
title after the amendment reading ‘To control
the subdivision
and, in connection therewith, the use of agricultural land’.
.
. .
Apart
from prohibiting the subdivision of agricultural land without the
written consent of the Minister, the Act inter alia also
provides
that no undivided share in agricultural land shall vest in any person
without the Minister's consent (s 3(b)) and that
no lease in respect
of a portion of agricultural land for a period of 10 years or longer,
or for other long terms, shall be entered
into without the Minister's
written consent (s 3(d)).
The
clear impression one gets from reading the Act as a whole is that the
object and purpose thereof is to prevent subdivision of
agricultural
land into uneconomic units, and furthermore to prevent the use of
uneconomic portions of agricultural land for any
length of time.'
[To
which I would add — 'and furthermore to prevent encroachment on
the use of agricultural land so as to threaten its viability
as
such'.]
[29]
Thus, in order for the plaintiff’s
case - to the extent that it is founded on the alleged application of
s 3(d) of the
Act - to succeed, it would have to be established
that the right reserved to the lessor to live in the dwelling house
resulted
in the concluded lease being in respect of only part of the
property as defined with reference to its registration in the deeds
registry, rather than the whole of the property. For the
reasons given earlier, I have already decided that issue adversely
to
the plaintiff. The lease gives the defendant the use and
enjoyment of the whole property for farming purposes.
[30]
Notwithstanding
that no reliance on the provision had been pleaded in the amended
particulars of claim, the plaintiff’s counsel
submitted in
their heads of argument and in their oral argument at the hearing
that if the lease did not fall into the category
contemplated in
terms of s 3(d) of the Subdivision Act, the provisions of clause
16 thereof
[17]
brought it
within the reach of s 3(e)(ii). Section 3(e) of the Act provides
that:
Subject
to the provisions of section 2-
(i)
no portion of agricultural land, whether surveyed or not, and whether
there is any building thereon or not, shall be sold or
advertised for
sale, except for the purposes of a mine as defined in section 1 of
the Mines and Works Act, 1956 (Act 27 of 1956);
and
(ii)
no right to such portion shall be
sold or
granted for a
period of more than 10 years or for the natural life of any person or
to the same person for periods aggregating more
than 10 years
, or
advertised for sale or with a view to any such granting, except for
the purposes of a mine as defined in section 1 of the Mines
and Works
Act, 1956
unless
the Minister has consented in writing.
(Underlining
provided to highlight the most relevant part of the provision.)
[31]
The defendant’s counsel questioned whether it was open
to the plaintiff’s counsel to place any reliance on s 3(e)(ii)
in the absence of any reference thereto in the particulars of claim.
In my view, although it is desirable for a plaintiff
who relies on a
provision of a statute for the relief it seeks to identify the
provision in its particulars of claim, a failure
to do so does not
prevent it from invoking the provision in argument if it is
implicated as a matter of law on the duly admitted
factual evidence.
The position would be different only if the other party would be
prejudiced in the conduct of its case
by the reliance on a
non-pleaded statutory provision. That could be the case if the
other party had not adduced evidence
or directed cross-examination
that it would have done if reliance on the provision had been
pleaded. There was no suggestion
in the current matter that the
defendant would have tendered additional evidence to meet the point
had a reliance on s 3(e)(ii)
been pleaded by the plaintiff.
It would be senseless in the circumstances to avoid dealing with the
issue when the effect
would only be to invite a re-running of the
case on the same evidence in fresh proceedings.
[32]
The alternative argument advanced on the
plaintiff’s behalf begs the question whether the grant of a
right to use a facility
on the property constitutes a right to a
portion of the land of which the property consists. Taken to
its extreme the plaintiff’s
contention would mean that if a
right were to be granted to a farm worker to occupy a single room in
a cottage on a farm for his
lifetime or for periods which taken
together (say, in terms of a renewable annual contract of employment)
might amount to more
than ten years, that could competently be done
only with the prior written consent of the Minister of Agriculture.
That postulate
would seem to give rise to a function for the Minister
which bears no relationship whatever with the recognised objects of
the
Act. The result would be to give the Minister a regulatory
function in respect of the use of the land irrespective of the
fact
that the act in question did not relate to a subdivision of the land
in either the ordinary or extended sense of the concept
identified in
Adlem
,
supra, at para 12. The postulate also serves to highlight that
a proper answer to the question has to be framed mindful
of the
objects of the statute, in general, and the import of the term
‘
portion of agricultural land
’, in
particular. The use of the farmhouse for dwelling purposes does
not derogate from the character of the farm as
a unitary agricultural
enterprise. It has no subdivisional effect on the land and no
effect on the use of the land as a notional
single unit for farming.
Moreover, as I shall seek to illustrate below, it is not something
self-evidently to be equated
to the use of ‘a portion’ of
land in the relevant sense.
[33]
If regard is had to the wording of sub-paragraph (i) of
paragraph (e), it is significant that it makes a distinction between
buildings
and portions of land; it speaks of portions of land
‘
whether there is any building thereon or not
’.
This would suggest that the grant of the right to use a building that
stands on agricultural land is not the same
thing as granting a right
to the land on which it stands. The notion does not present a
conceptual difficulty. While
buildings accrue to the land on
which they are erected, they are not the same thing as the land.
Thus the grant of the use
of a building erected on agricultural land
would not, without more, constitute the grant to the user of a right
in a portion of
the land.
[34]
In any event, the grant of a right in a portion of land
implies a voluntary disposition by the grantor of a part of the
bundle of
rights that it holds in the land. The lessor could
not grant to himself a right that as owner he already possessed.
For that reason, s 3(e)(ii) of the Subdivision Act could find no
basis for operation if clause 16 were construed, according
to its
tenor, as a limited reservation of right of use and enjoyment by the
lessor.
[35]
It follows that the implication of the plaintiff’s
argument must necessarily be that clause 16 of the lease
expresses
the conferral by the lessee of a right on the lessor in
portion of his own land. It is trite that no-one is able to
effectively
grant what he does not possess (
Nemo dat quod non
habet
). The lessee did not enjoy the right of occupation of
the farmhouse for so long as the lessor continued to live there and
therefore it was not a right that was within its ability to grant.
[36]
Furthermore, the rights that are invested in the lessee in
terms of the lease - as the plaintiff’s counsel were at pains
to
stress in their argument in support of their reliance on s 3(d)
of the Act - are not to the property as such, but rather to
the use
and enjoyment thereof
on the basis provided in terms of the
lease
. The effect of clause 16 of the lease is not to
sequester the land on which the farmhouse stands from the rest of the
property,
or in any way to inhibit the lessee from using and enjoying
the whole property for the purpose for which it was let. The
effect of clause 16 therefore in no way constitutes a subtraction
from the lessee’s rights in terms of the lease. Thus,
it
cannot properly be construed as constituting the grant of a right by
the lessee to the lessor.
[37]
All of the aforementioned considerations make it clear, in my
view, that s 3(e)(ii) of the Act is not implicated.
[38]
It should be mentioned that the plaintiff (erroneously
described as representing the Trust) and the defendant subsequently
subscribed
to an addendum to the lease on 26 August 2010. The
addendum appears to have been directed at confirming the plaintiff’s
reserved right of occupation in the farmhouse. It is not
necessary to consider the addendum in the light of the concession
by
Mr
JW
Olivier
SC for the plaintiff that it
did not amend the original contract, nor was it intended to do so.
Suffice it to say that
if the addendum did have the effect of
purporting to amend the original contract in a manner that gave rise
to a contravention
of the Act, it would be the addendum, and not the
original contract, that would be legally ineffectual.
[39]
The relief (described in paragraph [1].1, above) in respect of
the notarial cession of lease was predicated on the alleged voidness
of the lease itself. It is not necessary to consider it in the
context of the conclusions reached on the latter question.
[40]
In the result, the plaintiff’s claim will be dismissed
with costs. Both sides employed two counsel. That was
reasonable
in view of the commercial importance of the matter and the
complexity of some of the legal issues involved in the dispute.
[41]
The following order is made:
The plaintiff’s
claim is dismissed with costs, including the fees of two counsel.
A.G.
BINNS-WARD
Judge
of the High Court
APPEARANCES
Plaintiff’s
counsel: J.W. Olivier SC
P-S.
Bothma
Plaintiff’s
attorneys: Muller Terblanche Beyers Inc.
Worcester
Van
der Spuy
Cape
Town
First
Defendant’s counsel: T.N. Potgieter SC
H.
Jansen van Resnburg
First
Defendant’s attorneys Chris Fick and Associates
Cape
Town
Second
Defendant: No appearance
[1]
The
relevant part of the condition provided that the land units ‘
nie
afsonderlik met ‘n verband beswaar, afsonderlik oorgedra of op
enige ander wyse afsonderlik mee gehandel mag word sonder
die
skriftelike toestemming van die Minister van Landbou nie
’
.
(That is that the land units
could
not be individually mortgaged, transferred or otherwise dealt with
in any manner without the written consent of the Minister
of
Agriculture
.
(My translation.))
[2]
SPECIAL
POWER OF ATTORNEY TO EXECUTE NOTARIAL DEED
I
the undersigned
Matthys
Pieter Ruben de Villiers
etc….
nominate,
constitute and appoint Ronelle Miller, with power of substitution,
to be my/our lawful Agent to appear before a Notary
Public…and
then and there as my authorised representative to sign a Notarial
Deed in accordance with the draft attached
hereto which has been
initialled by me/us for purposes of identification, and to make such
formal amendments thereto as might
be necessary for the purposes of
the registration thereof,
and
in general, for the achievement of the aforementioned purposes, to
do or permit to be done everything as completely and effectively
as
if I/we were personally present and dealing with the matter, and
I/we hereby ratify everything that our nominated Attorney
and Agent
lawfully does or permits to be done in terms hereof.
Signed
at De Doorns on 13 October 2008.
(My
translation.)
[3]
The
contract of lease…was signed by the agent and the notarial
lease was executed by her on behalf of the Plaintiff as
lessor and
the First Defendant as lessee before the notary relying on the power
of attorney (annexure 2(a)(i) en (ii)) and the
notarial contract of
lease (annexure 2(b)), for which there was no authority had been
granted by the Plaintiff to the agent or
existed, as:
1
The power of attorney did not have
the notarial contract of lease annexed as an attachment
2
The power of attorney which the
Plaintiff had granted related to the notarial deed mentioned in the
power of attorney, which was
not, and could not have been, the
notarial contract of lease.
(My
translation.)
[4]
Cf.
s 228 of the Companies Act 61 of 1973, which was then in force.
[5]
‘
NOTARIAL
CONTRACT OF LEASE
It is hereby
declared that on 2009
Ronelle
Miller appeared before me Christiaan Ludolph Nelson Fick, Notary
Public of Cape Town, duly sworn and admitted, in the
presence of the
undersigned witnesses, acting as the agent of
1.
The
Trustees of the MPR de Villiers Family Trust…
herein
represented by Matthys
Pieter Ruben de Villiers
Hereafter
referred to as the “Lessor”
And as agent
of
2.
Elspiek Boerdery (Pty) Ltd
…
.
herein
represented by
Gerhardus Hager de Kock
…
(
hereafter
referred to as the Lessee
)
in terms of a
power of attorney granted to her on 13 October 2008
which powers
of attorney are filed in my protocol
And the
parties declared that:
Whereas the
Lessor is the registered owner of:
1.
…
..
’
(My
translation.)
[6]
In
his original particulars of claim the plaintiff had pleaded that the
draft had been attached to the power of attorney and that
the
consequent execution and registration of the notarial lease was
invalid by virtue of the contract having been purportedly
concluded
between the plaintiff and the defendant, rather than between the
Trust and the defendant as expressed in the draft.
[7]
At p. 316 ff of exhibit A.
[8]
The
plaintiff’s counsel emphasised that it is not necessary that
the lessor be the owner of the property let. That
much is
trite. But the principle hangs in the air on the facts of the
current case; there being nothing to show that it
was ever intended
that the Trust, rather than the owner of the property, should be the
lessor. The only object of the Trust
that was demonstrated in
the evidence was to hold most of the shares in the defendant company
in the context of the contemplation
by the plaintiff and De Kock, at
the relevant stage, that the company would replace the plaintiff as
the registered owner of
the property.
[9]
See
para [5].2, above.
[10]
‘
12.
On a proper construction the lease confers the right of use on the
First Defendant in respect of that part of the property,
with the
exclusion of the dwelling house and of certain outbuildings thereon,
while that portion on which the dwelling house
and the relevant
outbuildings are situated, was not leased by the First Defendant,
but in terms of the contract of lease was
reserved for use by the
lessor.
13. The
Minister, as defined in the Act, had not granted written consent for
the contract of lease, of which the term was longer
than 10 years
and which was concluded in respect of a portion of the property.
14. In the
premises the contract of lease is void and the Plaintiff is entitled
to the deregistration thereof.
’
(My
translation.)
[11]
None
of which pertain on the facts of the current case.
[12]
‘
2.
LEASE
OF THE PROPERTIES
2.1
The properties, which are known as the farm Elspiek, are let
together with the store houses, poison room, fertilizer store,
tractor
shed and labourers’ houses, as also the movable
property and attachments including power points, pumps, pipes and
other
equipment, such as is currently to be found on Elspiek and is
used for farming on the farm or which could be useful for that
purpose, as also access to all water for human or agricultural use
to which the farm Elspiek is entitled, and the use of all vineyards
and other cultivated material that is intended or suitable for use
to produce income.
2.2
The properties are let to the lessee for purpose of
conducting an agricultural enterprise thereon for its own account,
specifically
for the cultivation of table grapes and the lessee may
use the leased property for no other purpose than that which is
related
to such farming and associated activities.
2.3
…
…
2.8
The Lessee shall use and ensure that the dwellings, store
houses, stores etc. on the farm are used in the manner in which a
diligent
owner would use them and maintain them in good condition
and at the expiry of the lease return them to the lessor in the same
good condition as it received them at the commencement of the lease
fair wear and tear excepted.
’ (My translation.)
I have not
translated all the provisions of clause 2 because of the length of
the provision. Suffice it to say that the
content of the other
provisions of the clause confirm that the object of the lease was to
afford the lessee the use and enjoyment
of the whole property for
the purpose of farming on it.
[13]
‘
16.
DWELLING
AND YARD
The Lessor
retains the right to reside in the dwelling on the property and to
use the outbuildings in the yard (except those outbuildings
used by
the lessee for ordinary farming purposes) for so long as he and/or
his wife might live or until they decide to relocate.
The Lessor is
responsible for the maintenance and upkeep of the farmhouse and
buildings used by him and for payment for all services
provided to
the dwelling and buildings.
’
(My
translation.)
[14]
‘…
the
properties described in the preamble, which properties are currently
possessed by the Lessor’
.
(My translation.)
[15]
‘
In
this agreement, except if a different meaning is clearly intended,
the following words and expressions shall have the following
corresponding meaning:
’.
(My translation.)
[16]
Underlining
supplied to express the emphasis in the plaintiff’s counsel’s
argument.
[17]
Quoted in para [21], above.