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[2004] ZALCC 23
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Ratsegaai Community In Re: Ewing NO and Others v Diratsegae Communal Property Association and Others (LCC88/98) [2004] ZALCC 23 (20 December 2004)
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IN THE LAND CLAIMS COURT OF SOUTH AFRICA
Held in Randburg on 1 December 2004 CASE NUMBER: LCC88/98
Before Bam JP and Moloto J
Decided on: 20 December 2004
In the matter of :
RATSEGAAI COMMUNITY
Concerning
HARTEBEESFONTEIN 431 JP and KOEDOESFONTEIN 432 JP
In re :
CHRISTOPHER HAIG EWING N.O. First Applicant
BRIAN JOHN EATON N.O Second Applicant
JANET ADRIENNE CHARTER N.O Third Applicant
FRED GRENVILLE DAVIDSON Fourth Applicant
And
THE DIRATSEGAE COMMUNAL PROPERTY ASSOCIATION First Respondent
THE MINISTER OF LAND AFFAIRS Second Respondent
REGIONAL LAND CLAIMS COMMISSIONER:
GAUTENG AND NORTH-WEST PROVINCES Third Respondent
REGISTRAR OF DEEDS, PRETORIA Fourth Respondent
JUDGMENT
MOLOTO J:
This is an application for an order that the Remaining Extent of Portion 34 (a portion of portion 1) of the farm Groenfontein 429, registration division JP North-West Province, measuring 129,6049 hectares be transferred into the name of the Charter Property Trust (“the Trust”). The application is brought by four applicants, the first two of whom act in two capacities as executors in the estate of the late Richard James Charter and trustees of the Trust. The last two act as trustees in the Trust. None of the respondents filed a notice of intention to participate in the matter.
Background
The first respondent lodged a claim with the Regional Land Claims Commissioner for the Gauteng and North West Provinces in terms of the Restitution of Land Rights Act1 (“the Act”) for the farm Hartebeestfontein 431 JP and Koedoesfontein 432 JP, in the district of Koster. At the time of lodging the claim the two farms had been sub-divided into several portions, which were owned by different owners, among them the late Richard James Charter (“the deceased”). All the landowners of the various portions of the two farms, except the deceased, settled the claim and transferred their various portions to the first respondent. The settlement agreement was made an order of Court on 6 November 1997. One of the landowners, Hermanus Hendrik Rabie (“Rabie”), owned Portion 15 of the farm Hartebeestfontein and also the farms the Remaining Extent of Portion 34 of the farm Groenfontein 429 JP and Gouvernements Grond 430 JP which were not subject to the land claim. However, Rabie offered these two farms for sale as he found them too small to farm economically. They were also transferred to the first respondent.
Later negotiations between the first two respondents and the deceased culminated in a settlement agreement being signed on 26 April 1999. The terms of the settlement agreement were that the deceased would sell Portion 13 (a portion of portion 1) of the farm Hartebeestfontein 431, Registration Division JP, North-West Province, measuring 659,6282 hectares to the second respondent for R540 000,00 and the second respondent would sell to the deceased the Remaining extent of portion 34 (a portion of portion 1) of the farm Groenfontein 429, Registration Division JP, North West Province, measuring 129,6049 hectares for R106 684,00. The implication is that the second respondent would acquire this latter farm from the first respondent. The transfers were to be registered simultaneously. Pursuant to the settlement agreement the parties thereto entered into two agreements of sale, one for disposing of Portion 13 of the farm Hartebeestfontein and the other for disposing of the Remaining Extent of Portion 34 of the farm Groenfontein. An order of this Court was then sought in the following terms:
“(1) The State is hereby ordered, by agreement between the parties, to acquire or expropriate Portion 13 (a portion of portion 1) of the farm Hartebeestfontein 431, Registration Division JP, North-West Province, as held by Deed of Transfer T58296/1994 in order to restore or award that land to the claimants.
The Court notes that this obligation will be complied with in terms of a settlement agreement entered into on 26 April 1999 between the State, the claimants and the owner, and in terms of the Deeds of Sale, schedules “A” and “B” thereto.”
The settlement agreement was not made an order of Court.
Relief sought
I have the following problems with the order sought :
There is no evidence that any of the parties to the settlement agreement of
26 April 1999 refused to act in terms of the settlement agreement.
The settlement agreement was not made an order of Court in the first place.
Therefore, when the applicants state in their supporting affidavit that the purpose
of the order sought is “to give effect to the order of the …… Court granted … on
26 April 1999”, they are not correct.
Contrary to the settlement agreement, the order prayed is silent on the counter
performance, namely the transfer of Portion 13 of Hartebeestfontein to the first respondent; and
A simple and inexpensive solution appears to be to instruct conveyancers to effect
transfer of the properties in terms of the Deeds of Sale that the parties concluded.
Order
The application is dismissed.
____________________
JUDGE J MOLOTO
I agree,
__________________
JUDGE F BAM
For the applicants :
Mr Mills of Cliff Dekker Attorneys, Johannesburg
For the respondents :
No appearance.
1 Act 22 of 1994, as amended.