DELAY IN PERFORMANCE OF THE CONTRACTS
[5]
The Minister’s approval was necessary in terms of s 42D of the Act, the relevant part of which
provides:
‘(1)
If the Minister is satisfied that the claimant is entitled to restitution of a right in land in
terms of section 2, and that the claim for such restitution was lodged not later than 31 December 1998, he or she may enter into
an agreement with the parties who are interested in the claim providing for one or more of the following:
(a)
The award to the claimant of land . . . .
. . .
(f)
Such other terms and conditions as the Minister considers appropriate.’
Such approval was given, in the case of the Wevell Trust, in terms of a letter dated 21 April 2004 and the price fixed was R3 362 700;
and in the case of the Clarkes, in terms of a letter dated 1 April 2004, and the purchase price (which was ultimately fixed after
further negotiation) was R10 192 800. Each letter of approval, signed by the Regional Land Claims Commissioner: Mpumalanga, contained the statement: ‘Kindly advise
your conveyancers to proceed with preparation of transfer documents’. The letters of intent were issued.
[6]
The conveyancer in each case was the applicants’ attorney, Ms Wellmanns. In the Wevell Trust
matter, on 10 September 2004 ? the day before registration was to have taken place ? the attorney received a letter from the office
of the Chief Land Claims Commissioner, stating:
‘We hereby request your office to withdraw the transfer from the Deeds Office. An investigation is currently in process and the outcome
will be within three weeks.’
The attorney received an identical letter on the same date in respect of the Clarke matter; there, documents had also been lodged
in the Deeds Office and were ‘on preparation’, which means that registration was about to take place. These transfer
documents were also withdrawn from the Deeds Office by the attorney. Correspondence followed.
[7]
On 5 November 2004 the applicants’ attorney pointed out in letters addressed to the Minister,
the Director-General, Land Affairs and the Chief Land Claims Commissioner that the three-week period had long since expired and that
nothing had in the interim been communicated to her or her clients. She said:
‘In the circumstances my client is left with no alternative but to advise that should you not give me written notification that I can
arrange to re-lodge within 14 days of the receipt of this letter, my client will institute proceedings in the Land Claims Court .
. . for an order compelling you to do so and thereafter to pay the purchase price together with costs & interest a tempore morae.
It is regretted by my client that this step has had to be taken, but the delay is prejudicing him severely, as well as causing considerable
prejudice to the Community which has been allocated the farms.’
[8]
The replies by the Chief Land Claims Commissioner dated 15 November 2004 said:
‘We refer to your letters of 5th November 2004 and would like to advise as follows:
(1)
We confirm that the Chief Land Claims Commissioner: Mr Tozi Gwanya has informed you that he would
let you know within 3 weeks of the outcome of the investigation.
(2)
Since the letter to yourselves by the Chief Land Claims Commissioner, it has transpired that the
investigations will take longer than it was initially anticipated.
(3)
Unfortunately we are unable to give definitive dates by which the investigations would be expected
to be completed, suffice to say that we would like the process to be thorough and satisfactory.
(4)
We regret the inconvenience which is being caused to the stakeholders in this claim including your
clients, however we believe that for the process to be beyond reproach we are required to undertake proper investigations which we
are currently undertaking.
(5)
We are accordingly requesting you to exercise patience until the process is completed.’
[9]
Faced with the delay the applicants’ attorney wrote on 22 November 2004:
‘My clients and the community are being severely prejudiced by the protracted delays;
My clients would therefore be willing, since you are unable to confirm a date by which your investigations would be complete, to accept
your written undertaking that your Department would pay to my clients on registration of transfer, interest on the sum of [the purchase
price] at bank overdraft rates from 20th September 2004 [in the Wevell Trust matter; 13 September 2004 in the Clarke matter] (the date by which transfer could have been registered
had you not instructed me to withdraw the documents from the Deeds Office,) to date of payment, both days inclusive.
However, my client hereby nonetheless without prejudice, reserves his rights to institute proceedings in the Land Claims Court within
14 days from 9th November 2004, as set out in the penultimate paragraph of my letter to you of 5th November 2004.’
The suggestion made by the applicants’ attorney seems to me to have been perfectly reasonable. It was ignored.
THE APPLICATIONS
[10]
Applications on notice of motion dated 9 December 2004 were brought in both matters. The relief sought
in each matter was an order directing the respondents:
(1)
within seven days of the order to authorise and instruct the applicants’ attorney to lodge
all the required documents with the office of the Registrar of Deeds, Pretoria, for the registration of the farms into the name of
the Ndwandwa Community Trust;
(2)
‘forthwith on or after the date of registration of transfer’ to pay the purchase price
agreed upon;
(3)
to pay interest a tempore morae at 15,5 percent per annum from receipt of the date of demand ie
15 November 2004, to date of payment; and
(4)
to pay the applicants’ costs of suit.
[11]
The founding affidavits in each case pointed out that the applicants were suffering prejudice consisting
in the loss of interest on the purchase price. They concluded, with reference to the letters of 5 November 2004 quoted above:
‘In the premises the First to Fourth Respondents are in default of their obligations under and in terms of the Agreement as the period
allowed in the said notice . . . has now expired.’
The reply to these latter paragraphs in the answering affidavits was:
‘Respondents dispute the allegations contained in this paragraph. I submit that despite the contention by the Applicant to the contrary,
there is a rational basis for the investigations which led to the suspension of the transfer and registration process. The basis
of the investigation is that there is a reasonable and well founded suspicion that the valuation of all the farms involving the Ndwandwa
Community was tainted with irregularities. To that extent, the Third Respondent has appointed a suitably qualified valuer to review
the valuation process which was used in the valuation of all farms which were bought on behalf of the Ndwandwa Community. In particular
it is suspected that some of the valuation amounts affecting most of the subject farms were grossly and unreasonably inflated. I
accordingly submit that having regard to the prejudice that the Applicant is alleged to be suffering and the considerable prejudice
that is likely to result to the Respondents (and by extension to the public) should the investigations not be undertaken, the balance
of convenience favours the Respondents undertaking a proper and thorough investigation without unnecessary pressure from the affected
parties.
Wherefore the Respondents pray that it would please this Honourable Court to dismiss this application with costs on an attorney and
client scale.’
That was the only point of substance raised in opposition to the applications. There was also a bare denial that the applicants were
suffering prejudice. The answering affidavits were in each case deposed to by Mr Andreas, the legal advisor to the Chief Land Claims
Commissioner.
[12]
I pause to remark that the phrase ‘balance of convenience’ in the passage just quoted from
the affidavit of Andreas is entirely inappropriate in the context in which it was used. The phrase is of course well known in applications
for interim interdicts. And that indeed is the course the respondents should have followed. They should have applied for an order
interdicting transfer of the properties pending a date by which they anticipated that the investigations would be completed, and
applied to extend that date if necessary. In such a case the prejudice to the applicants would to a large extent have been eliminated
by an undertaking to pay interest on the agreed purchase prices for the farms, should the investigation show that the valuations
of their farms were not tainted by any irregularity. If there were irregularities, the applicants could hardly complain if they received
no interest. And the prejudice to the fiscus if there had been irregularities would obviously have weighed with the court in considering
an interim interdict. The Chief Land Claims Commissioner, however, has entirely misconceived his powers and those of the Minister.
He said (in his replying affidavit in the application for leave to appeal to this court):
‘It is respectfully submitted that we [ie the Minister and himself] were entitled to freeze the transfer of those lands in issue which
had not yet been transferred and that the [applicants] were not entitled to proceed to Court to enforce the agreement once they had
received my letter to that effect and my further letter of 15 November 2004.’
Neither the Chief Land Claims Commissioner nor the Minister had any ’entitlement’ to stop, unilaterally, performance of
the contracts of sale; and the applicants had every entitlement to go to court to enforce them.
[13]
The replying affidavits, not surprisingly, pointed out that Andreas had had nothing to do with either
matter at any stage whatsoever and that no attempt had been made to obtain affidavits from the persons who did have knowledge of
the events leading to the conclusion of the contracts. Notice was given that at the hearing application would be made for the striking
out of the entire answering affidavits. The deponents to the replying affidavits also emphasised, as had their attorney in her letters
of 5 November 2004, that the transactions with which they were concerned stood independently of the transactions for the purchase
of other farms in the area; they alleged that their transactions were above suspicion; and they stated that no irregularity in regard
to their contracts had ever been brought to their attention. They threw down the gauntlet by issuing a challenge to Andreas and the
respondents ‘to now come forward and give details of the investigations’ against them. Further allegations of prejudice
were made. In the Wevell matter, the following was said:
‘Apart from the lost interest mentioned in my last affidavit I continue to suffer prejudice as a result of the totally unreasonable
attitude of the Respondents. From the date of the sale to the end of December 2004 the applicant has lost the sum of R25 200
in lost rentals ie we could have rented out the farm and its house from June of last year. We have had to preserve the farm and this
cost is about R800 per month again incurred since June of last year ie the sum of R7 200. In March and again in June of this
year if nothing happens expenditure will have to be disbursed to maintain and build fire breaks in a sum of approximately R10 000.
Lastly I have and will have spent funds on water levies of R6 600 per annum.’
In the Clarke matter, the deponent said:
‘Apart from the lost interest mentioned in my last affidavit the Applicants continue to suffer prejudice as a result of the totally
unreasonable attitude of the Respondents. From the date of the sale to the end of December 2004 the applicants have spent about R165 742.00
in closing down the farms and the holding costs per month until transfer is passed are R10 815.00 per month. This latter figure
involves salaries for staff looking after the farms, water taxes, insurance, electricity, repairs & maintenance and guards. Also
winter is approaching and the cost of fire breaks will be an approximate amount of R18 000.00. From March of 2005 there will
be no income tax relief for me as there is no income from the farms to off set the expenses.’
[14]
Subsequent the delivery of the replying affidavits the respondents delivered a supplementary answering
affidavit in each case with a request to the court that they be accepted. The affidavits were again deposed to by Andreas. In the
affidavits Andreas said:
‘I am advised that the Respondents are not entitled to file a second set of affidavits. I pray, however, that this Honourable Court
will permit the filing of this affidavit in that there are exceptional circumstances. First, in the answering affidavit, to the knowledge
of the Applicant, the First to Fourth Respondents were investigating allegations of irregularities on the part of the Applicant.
Secondly, subsequently to the filing of the answering affidavit new facts have emerged which enabled the First to Fourth Respondents
to take a firm view in this matter, and who have . . . elected to cancel the agreement.’
Andreas went on to say that the Department had elected to cancel the contracts ‘on the basis of a material misrepresentation
on the part of the applicants alternatively fraud’. The affidavits continued:
‘In support of the above submission, I bring the following facts to the attention of this Honourable Court which demonstrate that the
seller’s conduct is such which is tantamount to bad faith, fundamental breach, fraudulent behaviour, in short, conduct that
entitles the Fourth Respondent to lawfully resile from the contract of sale. The Applicant repudiated and/or fundamentally breached
the contract by acting in bad faith and/or fraudulently or negligently, and the Respondents, in particular the purchaser, hereby
elect to cancel the agreement.’
There followed a section entitled ‘The Supporting Facts’ in which Andreas pointed out that the applicants had had their
properties valued by Mr Albert Roux. Andreas attached to his affidavit an unsworn and unsigned document purporting to be an affidavit
by one Daniel in which he said that Roux had admitted accepting a bribe to inflate the value of a property known as ‘Vygeboom’
owned by a Mr Visagie which had been sold by Visagie to the Department; and Andreas also attached an unsworn report of Mr Derrick
Griffiths, whose expertise was not established, which pointed out alleged shortcomings in valuations, inter alia by Roux, of properties
in the area sold to the Department.
[15]
The applicants delivered further replying affidavits in which they pointed out that Andreas’ first
supplementary answering affidavit was again wholly hearsay. They also denied in strong terms the fraud alleged against them and disputed
the validity of the cancellation of the agreements they had concluded with the Department.
[16]
On 14 April 2005 (p 145) a hearing in the Land Claims Court took place before Gildenhuys J. I quote from
his judgment:
‘When the matter came before me, I pointed out some shortcomings in the respondents’ answering affidavits. One of them was the
unsubstantiated hearsay in Mr Andreas’ affidavits. The respondents then asked for leave to deliver a second supplementary answering
affidavit. I accepted the first supplementary answering affidavit, and granted leave to the respondents to deliver a second supplementary
answering affidavit. I did so because the integrity of the restitution process in the Badplaas areas was at issue, and because public
money was involved. I did not want to allow the inept drafting of the first two answering affidavits to impede a full venting of
the serious issues raised therein.’
[17]
Second supplementary answering affidavits dated 9 May 2005 were delivered, yet again deposed to by Andreas.
The Daniel affidavit was annexed, this time properly attested. Further valuations (again not confirmed under oath) by Griffiths (whose
expertise was again not set out) and which related specifically to the applicants’ farms, were annexed. Also annexed was a
document headed ‘Department of Land Affairs. 1. Ndwandwa Community Project’. It appears from the minute of the pre-trial
conference that this document was an extract from a report by Ernst & Young. The extract annexed was undated, unsigned and unattested
and no indication as to its author(s) appeared from it. There was no reference to the document in Andreas’ affidavit in the
Wevell matter due apparently to some mechanical defect in the printing of the papers. That matter was nevertheless argued in the
court a quo as well as on appeal on the basis that the missing allegations were the same as the allegations made in the second supplementary
answering affidavit in the Clarke matter. In that matter Andreas identified the document as volume 2 of a report by Ernst & Young
‘which has recently become available’ (in fact it had become available more than three months previously on 7 February)
and he claimed that
‘the facts set out therein demonstrate, with respect, if proven that the fraud perpetrated on the Respondents [involves] the same role
players associated with the Applicants’ claim [who] include valuators, Pieter Visagie, and senior employees of the Second and
Third respondents’ personnel as well as potentially representatives of the [Ndwandwa Community Trust]’.
The Wevell transaction is not referred to in the document at all. The only reference to the Clarke transaction is a statement that
they had been paid ? which is untrue.
[18]
In the second supplementary answering affidavit in the Wevell Trust matter Andreas repeated the allegation
made in his first supplementary answering affidavit that Roux, the valuer of both the Wevell Trust property and Visagie’s Vygeboom
property, was bribed by Visagie to inflate the value of the latter property; and Andreas went on to make the additional allegation
that Roux had knowingly used the false and inflated valuation of the Vygeboom property to determine the market value of the Wevell
Trust property. The answer to these allegations given in the second supplementary replying affidavit in the Wevell Trust matter was
simple and conclusive: namely, that Roux could not have used the valuation of the Vygeboom property to support his valuation of the
Wevell Trust property as the Vygeboom valuation did not exist at that time ? it was compiled subsequent to the valuation of the Trust’s
property.
[19]
Andreas also alleged that Visagie in his capacity as chairman of the Badplaas Development Forum had acted
on behalf of the Wevell Trust and that the Trust had benefited from his fraudulent activities. In the second supplementary replying
affidavit, the deponent on behalf of the Trust said that the Trust had had nothing to do with Visagie and that the negotiations in
respect of the Trust’s property had been carried on by Dr Pieter Kieviet, the coordinator of a subcommittee of Agri-Badplaas.
Kieviet, as he confirmed in his supporting affidavit, negotiated directly with the Regional Land Claims Commissioner and those negotiations
took place long before the formation of the body of which Visagie subsequently became the chair.
[20]
Similar allegations were made by Andreas in the Clarke matter. There, too, Mr Clarke senior, the deponent
to the second supplementary replying affidavit, demonstrated that the valuation of each of the Clarke properties antedated the valuation
by Roux of the Vygeboom property, in some cases by several months, and said that he and his son had negotiated personally with the
Regional Land Claims Commissioner and not through Visagie.
[21]
It is quite apparent that in each of the two matters Andreas did not know what he was talking about.
That is not surprising, as he was not involved in any way in the negotiations which led to the conclusion of the contracts. What
is surprising is that he continued to depose to affidavits when he did not have the necessary knowledge. No reason whatever was given
why those involved in the negotiations and who had personal knowledge of what had transpired, did not depose to affidavits.
[22]
A joint pre-trial conference in respect of both matters was held on 24 May 2005 with Gildenhuys J presiding.
Paragraphs 5 and 6 of the minute read:
‘5.
The parties are agreed that if it is found that the deeds of sale were properly cancelled,
the applications must be dismissed. On the other hand, if it is found that the deeds of sale were not properly cancelled, the applicant
would be entitled to its relief.
6.
The applicant has indicated that it will not seek a referral to evidence of any issue.'
[23]
The matter again came before Gildenhuys J on 13 June 2005. At the earlier hearing on 14 April senior
counsel then representing the respondents had handed up heads of argument which said the following:
’24.
The applicant has not sought in this application to test the validity of the cancellation. The Applicant
must elect whether it seeks to test the validity of the cancellation or not.
25.
In the circumstances the appropriate order is to dismiss the application with costs.’
At the hearing on 18 June, the same senior counsel handed up a second set of heads of argument which said:
‘[T]he Applicant made it clear at the pretrial conference that it does not seek to refer this matter to trial nor to seek any matter
to be referred to oral evidence. The Applicant has elected to stand by the papers and if it cannot make out a case on the papers,
to fail. . . . We accordingly submit that this application ought to be heard and decided on the basis of the facts contended for
by the Respondents as well as those facts of the Applicant’s contentions which are not controverted by the Respondents.’
[24]
Gildenhuys J accordingly considered the issue isolated at the pre-trial conference on the papers before him,
as he was expressly requested to do by both sides, and applied the following well-known test in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd:
‘It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether
it be an interdict or some other form of relief, may be granted if those facts averred in the applicant’s affidavits which
have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the
Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial
by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact (see in this regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163-5; Da Mata v Otto NO 1972 (3) SA 858 (A) at 882D-H). If in such a case the respondent has not availed himself of his right to apply for the deponents
concerned to be called for cross-examination under Rule 6(5)(g) of the Uniform Rules of Court (cf Petersen v Cuthbert & Co Ltd 1945 AD 420 at 428; Room Hire case supra
.RTF of original document