1
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: A 38/2014
Case no: A 91/2015
In the matter between:
ALWYN PETRUS VAN STRATEN NOAPPLICANT
and
DESERT FRUIT (PTY) LTD1STRESPONDENT
DESERTKOM (PTY) LTD2NDRESPONDENT
AGRICULTURAL BANK OF NAMIBIA LIMITED3RDRESPONDENT
ARUBA FRUIT EXPORTERS (NAMIBIA) (PTY) LTD4THRESPONDENT
AL DAHRA AGRICULTURAL COMPANY5TH RESPONDENT
THE REGISTRAR OF DEEDS6TH RESPONDENT
INDUSTRIAL DEVELOPMENT CORPORATION
OF SOUTH AFRICA7TH RESPONDENT
FRANCOIS ERASMUS & PARTNERS8TH RESPONDENT
Neutral citation:Van Straten NO vDesert Fruit (Pty) Ltd(A38-2014 and A 91-2015) [2016] NAHCMD 224(28 July 2016)
Coram:PARKER AJ
Heard:19 May 2016; 1 July 2016
Delivered:28 July 2016
Flynote:Practice – Applications and motions – Dispute of fact – When material disputes which have arisen are such as would give rise to a variety wide spectrum of substantial factual enquiries motion proceedings not appropriate – More appropriate to order parties to trial – Where affidavits contain all necessary averments and define the issues sufficiently clearly pointless to order filing of pleadings – Accordingly, to save time and expense advisable to order affidavits to stand as pleadings which have closed. Principles in Hadiaris v Freeman and Freeman 1948 (3) SA 720 (W) applied.
Summary:Applications and motions – Dispute of fact – Court finding that genuine and material dispute of fact exist on significant aspects of case – The dispute revolves around the existence or otherwise of a so-called ‘oral or tacit lease agreement’ which is relevant to three applications instituted by first and second respondents – Synthetic approach proposed by Christie, The Law of Contract in South Africa, 5th ed, p 82 to establish proof of tacit agreement cannot be applied in motion proceedings – Court found there are good reasons why proceedings for rectification of the ‘oral or tacit lease agreement should be by action and not by application – Court found that the affidavits contain all necessary averments and define the issues sufficiently clearly – Consequently, pointless to order filing of pleadings – To save time and expense advisable to order affidavits to stand as pleadings which have closed.
ORDER
(a)The relief sought in para 1 of the notice of motion is refused.
(b)The applications by Desert Fruit (Pty) Ltd (first applicant) and Desertkom (Pty) Ltd (second applicant) under Case No. A 91/2015 and under Case No. 38/2014, together with its application for amendment filed under Case No. 38/2014, are referred to trial; and the notice of motion, answering affidavit and replying affidavits in each application are to stand as combined summons, pleas and replication, respectively, in the particular case.
(c)Desert Fruit (Pty) Ltd and Desertkom (Pty) Ltd (first and second respondents in the instant proceeding) are ordered, jointly and severally (the one paying, the other to be absolved), to pay costs of applicant Alwyn Petrus Van Straten NO.
(d)The legal practitioners of the parties are to attend a status hearing before Miller AJ at 15h30 on 11 August 2016 for Miller AJ to determine the further conduct of the matter.
JUDGMENT
PARKER AJ:
[1]There are three applications relevant to the present application in the instant proceedings, which is under Case No. A 38/2014; Case No. A 91/2015. In the notice of motion the applicant prays for dismissal of one of the applications, ie the rectification application (Case No. 91/2015), and in the alternative, referral of the matter to trial and in the further alternative, referral of certain issues to evidence. The particulars of that application (Case No. A 38/2014; No. A 91/2015) are these:
A.
(a)Case No.: A 38/2014; A 91/2015(‘dismissal or referral application’)
(b)Parties:
Applicant:
1.Alwyn Petrus Van Straten NO
Respondents:
1.Desert Fruit (Pty) Ltd
2.Desertkom (Pty) Ltd
3.Agricultural Bank of Namibia
4.Aruba Fruit Exporters
5.Al Dahra Agricultural Company
6.The Registrar of Deeds
7.Industrial Development Corporations SA Ltd
8.Francois Erasmus & Partners
(c)Date of filing: 3 November 2015
(d)Relief sought:
1.That the first and second respondents’ application for rectification in case number A 91/2015 be dismissed with costs, including the costs of one instructing and two instructed counsel (as the first and second respondent knew that material factual disputes existed, to the extent that the motion proceedings should not have been instituted).
2.Alternatively that (as amended):
2.1the first and second respondents’ application under case number A 91/2015 for rectification of the alleged lease agreement which forms the subject matter of their main application, and application for amendment under case number A 38/2014 be referred to trial.
2.2the first and second respondents’ main application together with its application for amendment filed under case number A 38/2014 be referred to trial.
3.Alternatively, to 2.1 and 2.2 above that the following issues in the above-mentioned cases, be referred for oral evidence:
3.1Whether or not the lease agreement, alluded to in paragraph 19 of the First and Second Respondents’ founding affidavit in the main application was entered into, as alleged, or at all.
3.2Whether or not Mr Van der Walt and/or the First Applicant has any authority to institute either the main application and/or the application for rectification and/or the application for leave to demand.
3.3Whether or not the meetings allegedly held on 27 May 2014 and 13 April 2015 were in fact held and/or attended by either Mr Van der Walt and/or Jaco Burger and/or Zeyn Bhyat.
3.4The question as to exactly when the lease agreement, oral or otherwise, was entered into and what the terms of such agreement were.
3.5How the amount of the tender made for the period 20 July 2012 to 28 February 2014 was calculated and compounded.
3.6Whether or not any rent was paid and why, if paid or set-off, it was never reflected in the second respondent’s financial statements.
3.7The basis for the claim for alleged expenses (alluded to in annexure “VDW 5” in the main application) and why bit is not reflected in the second respondent’s financial statements.
3.8Whether or not the first and second respondents are acting in fraudem creditorem.
3.9Whether any lease agreement was in existence (ie the property was identified) prior to Komsberg’s liquidation.
3.10The exact manner in which the alleged lease property was identified and by whom.
4.Costs of the application.
5.Such further and/or alternative relief as this Court may deem fit.
B.
(a)Case No.: A 38/2014 (‘main application’)
(b)Parties:
Applicants:
1.Desert Fruit (Pty) Ltd
2.Desertkom (Pty) Ltd
Respondents:
1.Alwyn Petrus Van Straten NO
2.Agricultural Bank of Namibia
3.Komsberg Agri Operations (Pty) Ltd
4.Al Dahra Agricultural Company
5.The Registrar of Deeds
6.Industrial Development Corporations SA Ltd
7.Francois Erasmus & Partners
(c)Date filed: 27 February 2014
(d)Relief sought:
1.The settlement area of Komsberg, Registration Division “V”, Karas Region, held by deed of Transfer No. T3166/2002.
2.That the first respondent be directed to sign all documents and do all things necessary to give effect to:
(a)the notarial execution of annexure “VDW 4” to the founding affidavit; and
(b)the registration of the aforesaid notarial agreement (as set out and registered in paragraph 2(a) above) against the title deed of Portion 1 of Portion 5 of the remainder of Farm Stolzenfels No. 74 in the settlement area of Komsberg, Registration Division “V”, Karas Region, held by Deed of Transfer No. T3166/2002
within 30 days from the date of the order of this Honourable Court, failing which, that the Deputy Sheriff for the district of Windhoek be authorised to take such steps and do such things in the first respondent’s stead.
3.That the first respondent be ordered to pay the costs of this application, which costs include the costs occasioned by the appointment of one instructing and two instructed counsel.
4.Granting the applicant such further or alternative relief as this Honourable Court may deem meet.
C.
(a)Case No.: A 91/2015 (rectification application)
(b)Parties:
Applicants:
1.Desert Fruit (Pty) Ltd
2.Desertkom (Pty) Ltd
Respondents:
1.Alwyn Petrus Van Straten NO
2.Agricultural Bank of Namibia
3.Komsberg Agri Operations (Pty) Ltd
4.Al Dahra Agricultural Company
5.The Registrar of Deeds
6.Industrial Development Corporations SA Ltd
7.Francois Erasmus & Partners
(c)Date of filing: 27 April 2015
(d)Relief sought:
1.That the written agreement, annexure “A” hereto, be rectified by the substitution of the words
“a 173-hectare portion of remainder of Farm Stolzenfels No. 74 in the settlement area of Komsberg, Registration Division “V”, Karas Region, held by Deed of Transfer No. T6425/1996.”
for the words
“Portion 1 of the Portion 5 of the remainder of Farm Stolzenfels No. 74. In the Settlement area of Komsberg. Registration Division “V”, Karas Region. Extent approximately 80,0000 (Eight Nil comma Nil Nil Nil Nil) hectares as indicated on Diagram SG No. A /2012 hereunto annexed. Held by Deed of Transfer No. T3166/2002.”
wherever the latter words appear.
2.Costs of the application (only in the event of same being opposed).
3.Further or alternative relief.
D.
(a)Case No.: A 38/2014 (‘amendment application’)
(b)Parties:
Applicants:
1.Desert Fruit (Pty) Ltd
2.Desertkom (Pty) Ltd
Respondents:
1.Alwyn Petrus Van Straten NO
2.Agricultural Bank of Namibia
3.Komsberg Agri Operations (Pty) Ltd
4.Al Dahra Agricultural Company
5.The Registrar of Deeds
6.Industrial Development Corporations SA Ltd
7.Francois Erasmus & Partners
(c)Date filed: 12 June 2015
(d)Relief sought:
1.Substituting the reference to:
“Portion 1 and Portion 5 of the remainder of Farm Stolzenfels No. 74 in the settlement area of Komsberg, Registration Division “V”, Karas Region, held by Deed of Transfer No. T3166/2002.”
where that reference appears in prayers 1 and 2(b) of the Notice of Motion dated 27 February 2014, by a reference to the following:
“the remainder of Farm Stolzenfels No. 74 in the settlement area of Komsberg, Registration Division “V”, Karas Region, held by Deed of Transfer No. T6425/1996.”
2.By inserting the following as prayer 3 immediately after prayers 1 and 2 as amended:
“In the alternative to prayers 1 and 2 above, declaring that a lease agreement exists between the second applicant and Komsberg Farming (Pty) Ltd (in liquidation) in respect of a 173-hectare portion of the remainder of Farm Stolzenfels No. 74 in the settlement area of Komsberg, Registration Division “V”, Karas Region, held by Deed of Transfer No. T6425/1996 and enduring for a period of 10 years with effect as from 1 June 2011 and otherwise on the terms as set out in annexure “VDW 4” as aforesaid.”
3.By renumbering the existing paragraphs 3 and 4 to paragraphs 4 and 5 respectively.
[2]The applicant in the instant proceeding (dismissal or referral application) is Mr Alwyn Petrus Van Straten NO, ie first respondent in the three applications, namely, the main application, rectification application, and amendment application. The first and second applicants in those three applications are the first and second respondents in the dismissal or referral application. For the sake of clarity, I shall refer to the parties by their names, where the context permits.
[3]In the main application, Van Straten NO has moved to reject the application, and has instituted a counter claim of his own wherein he applies for the eviction of Desert Fruit and all its employees from Komsberg’s properties. They are the properties of Komsberg Agri Operations (Pty) Ltd (‘Komsberg’ for short), ie the third respondent in the main application. It is worth noting here that Komsberg is in liquidation; and initially, a Mr David John Bruni and a Mr Ian McLaren of Investment Trust Co (Pty) were appointed as provisional liquidators. At the first meeting of creditors, applicant was then elected liquidator and appointed as such by the Master of the High Court. Thus, Van Straten brings the application in his official capacity as liquidator. I shall return to this fact in due course.
[4]Desert Fruit (Pty) Ltd (‘Desert Fruit’ for short) and Desertkom (Pty) Ltd (‘Desertkom’ for short) have moved to reject the present application. As I understand Mr Barnard, counsel for seventh respondent, makes common cause with applicant Van Straten NO in the present application; and so, counsel joins Mr Heathcote SC (with him Mr Schickerling), counsel for the applicant Van Straten NO, in the latter’s submissions. Thus, seventh respondent, for all intends and purposes supports the relief sought in the notice of motion.
[5]For the sake of clarity, I note as follows. The relief sought by the applicant Van Straten NO (in para 1 of the notice of motion) is dismissal of the rectification application (‘dismissal relief’). There is the alternative relief to the dismissal relief in para 2.1 of the notice of motion (‘first alternative relief’) that the rectification application be referred to trial. There is also the alternative relief in para 2.2 of the notice of motion to the dismissal relief (‘second alternative relief’) that the main application, together with the amendment application in respect thereof, be referred to trial. There is yet a further alternative relief (‘third alternative relief’) to first alternative relief and to second alternative relief that the issues listed in paras 3.1 – 3.10 of the notice of motion be referred for oral evidence.
[6]It follows, as a matter of course that the burden of this court in the present proceedings is first and foremost to consider the dismissal relief. I shall only proceed to consider the first alternative relief and the second alternative relief, if I refused the dismissal relief. And by a parity of reasoning and in that fashion, I shall only consider the third alternative relief if I refused the first alternative relief and the second alternative relief. I now proceed to consider the dismissal relief.
Dismissal relief
[7]In considering the dismissal relief I should keep in my mind’s eye the following principles. In Mineworkers Union of Namibia v Rössing Uranium Limited 1991 NR 299, at 302D; the court, per Levy J, stated:
‘A principle which is fundamental to all notice of motion proceedings is that if a litigant knows in advance that there will be a material dispute of fact, the litigant cannot go by way of motion and affidavit. If he nevertheless proceeds by way of motion he runs the risk of having his case dismissed with costs.’
[8]It has also been said, ‘The application may be dismissed with costs when the applicant should have realised when launching the application that a serious dispute of fact was bound to develop’. (Herbstein and Van Winsen; The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, 5th ed, p 460; and the cases there cited)
[9]The question that arises for determination in respect of the dismissal relief is whether on the papers Desert Fruit and Desertkom knew ‘in advance that there will be a material dispute of fact’ (in the language of Levy J in Mineworkers Union of Namibia), or that Desert Fruit and Desertkom ‘should have realised when launching the application that a serious dispute of fact was bound to develop’ (in the language of Herbstein and Van Winsen).
[10]The bone and narrow of Mr Heathcote’s argument on the dismissal relief is that a claim for rectification must be made by action. Mr Heathcote refers the court to a number of authorities in support of his argument, including Hadiaris v Freeman and Freeman 1948 (3) SA 720 (W); and Fourie’s Poultry Farm v Kwanatal Food Distributors 1991 (4) SA 514. In Fourie’s Poultry Farm, a counsel there submitted to the court that, in his view, the principle is perhaps most crisply stated in Hadiaris. That is also my view, as I demonstrate.
[11]Having consulted the authorities, I accept Hadiaris as good law; not least because there, Price J reviews the authorities; he also discusses the raison d’être of the proposition of law enunciated. I accept the ratiocination of the law and conclusions thereanent; and so I apply Hadiaris.
[12]Indeed, the nature of some of the material facts in Hadiaris bear significant similarities in essence with some key facts in the instant matter. For instance, as Mr Heathcote submitted, it should be remembered that Van Straten NO is a liquidator who only came upon the scene after the so-called ‘oral or tacit lease agreement’ (the target of the rectification application) had allegedly been concluded.
[13]Like the respondents in Hadiaris, the applicant Van Straten NO has no knowledge of what transpired between the parties to the so-called ‘oral or tacit lease agreement’; and so, all that he can say is that he does not know what led to, and how the parties entered into, the so-called ‘oral or tacit lease agreement with effect from 1 June 2011’, and that he does not admit the allegations concerning the ‘oral or tacit lease agreement’ in the founding affidavit. Thus, the only available evidence would be that presented by Mr Johannes Hendrik van der Walt (who describes himself as ‘Director’ of Desert Fruit).
[14]If Van Straten NO was ‘obliged to submit to proceedings of this kind’, Van Straten NO ‘will be in the hands’ of Desert Fruit and Desertkom. They ‘would be the only persons who had any evidence and Van Straten NO could not subject Desert Fruit and Desertkom to cross-examination and test the truth of their allegations in motion proceedings with regard to the transactions of the parties as respects the ‘oral or tacit lease agreement’.
[15]And, indeed, seventh respondent stands in the same boat as the applicant Van Straten NO. And I accept Mr Barnard’s submission that there is no written agreement placed before the court for the court to consider rectifying. And what is more, like the respondents in Hadiaris v Freeman and Freeman the applicant Van Straten NO in the instant proceedings, as Mr Barnard submitted, the seventh respondent IDC does not have facts of its own. IDC relies on facts produced by the parties to the dispute, that is, Desert Fruit and Desertkom. But these parties do not establish the consensus that existed between the parties to the so-called oral or tacit lease agreement. For instance, Van der Walt (deponent of the founding affidavit) refers to a diagram which he prepared and a diagram which a Surveyor (Mr De Wet) prepared, but it is not sufficiently clear on the papers in both the main application and the rectification application the exact size of the portion of land leased at the time the so-called ‘oral or tacit lease agreement’ was concluded. Then, in the amendment application, reliance is also placed on an oral agreement wherein there is a period of 10 years as duration of the agreement.
[16]All these amount to material genuine dispute of fact. And in all this, it should be remembered, the ‘absence of any positive evidence possessed by a respondent directly contradicting the applicant’s main allegation does not render the matter free of a real dispute of fact’. (H J Erasmus, et al, Superior Court Practice, p B1-47)
[17]And what is more; like the applicant Van Straten NO, if the seventh respondent IDC was ‘obliged to submit to proceedings of this kind (ie motion proceedings)’, IDC ‘will be in the hands of’ Desert Fruit and Desertkom. They ‘would be the only persons who had any evidence’ and IDC could not subject Desert Fruit and Desertkom to cross-examination in motion proceedings in order to test the truth of their allegations with regard to matters concerning the conclusion of the so-called ‘oral or tacit lease agreement’ which is absolutely critical in this proceeding.