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IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG

(LOCAL SEAT)

CASE NO: 1335/2020

In the matter between:

REMHOOGTE PLANT HIRE                                                                        First Applicant

LEON RENIER VAN TONDER                                                                Second Applicant

LEON RENIER VAN TONDER NO                                                              Third Applicant

CORNE MARAIS VAN TONDER NO                                                        Fourth Applicant

WOUTER VAN DER MERWE NO                                                                 Fifth Applicant

And

JACOB DURR TRUST (IT 5808/1997)                                                     First Respondent

JACOB DURR                                                                                     Second Respondent

JACOB DURR NO                                                                                  Third Respondent

KL DURR NO                                                                                        Fourth Respondent

A DURR                                                                                                    Fifth Respondent

CALICOM TRADING 38 CC                                                                    Sixth Respondent

 

JUDGMENT

 

BRAUCKMANN AJ

 

INTRODUCTION

[1] This is an urgent application in terms whereof the applicants seeks urgent relief inter alia:  relief in terms of section 28 (1) of the Alienation of Land Act, Act 68 of 1981 (“the Act”), alternatively in terms of the rei vindicatio. 

[2] In this application Applicants seek the urgent return of cattle delivered and money paid by the respective Applicants intended to be part of an anticipated deposit for the purchase of an immovable property owned by the Durr Trust. The Louisfontein Trust intended to purchase the immovable property from the Jacob Durr Trust (“The Trust”).  Applicants alleges that:

[2.1] no written agreement was concluded between the parties;

[2.2] as a result of the non-compliance with section 2(1) the Alienation of Land Act[1] (“the Act”) any agreement between the parties is void ab initio.

[3] In anticipation of the conclusion of a written agreement of sale and deposit for the purchase the Applicants delivered 250 adult cows either pregnant or already with calf. The Respondents concede the number of cows and weaners received but claims that 83 cows where not pregnant. One hundred and six (106) weaners were also delivered. The total value of R 846 916, 30 (the weaners were sold by Mr Durr  for R 846 916, 30  with the knowledge of the applicants, even before it was delivered to the Trust) and R394 680, 00 in the form of cash was made available to the Durr Trust.

[4] The Applicants directed final demands to the Respondents to either return the cattle and money or provide proper for the Applicants or their representatives to inspect the cattle and their offspring. The request to inspect the cattle was initially refused, and the Respondents refused to return any of the cows, their offspring or the money which they received fro Applicants. The Respondents also refused to provide information relating to the contract of sale of some of the cattle by Mr Durr or the trust to Calicom, as alleged by the respondents.

 

URGENCY ACCORDING TO APPLICANTS

[5] On 20 February 2020, the Applicants sought from the respondents an undertaking not to dissipate or sell the cattle. The applicants demanded and sought such undertaking within 24 (twenty four) hours; failing which;

“..ons kliënt geadviseer sal word om op ‘n dringende basis die hof te nader ten einde ‘n interdik teen u kliënt te verkry en u kliënt vir daardie regskoste aanspreeklik gehou sal word.”

[6] The respondents did not give such undertakings, and despite the threat levied against the respondents, no urgent application was forthcoming. Applicant changed horse in March 2020 and instructed new attorneys.

[7] The applicants directed final demands to the respondents on 3 March 2020, 17 March 2020 and 22 April 2020 to either return the cattle and money or provide proper undertakings.  In response to the final demands the respondents refused to allow the applicants to inspect the cattle (but changed their stance in the opposing affidavit by granting such rights to applicants who are, according to their founding affidavit cattle farmers and therefore knowledgeable in that regard). Applicants allege that there is still a refusal to allow inspection of the majority of cattle the undertaking does not extend to all of the cattle.

[8] The Respondents refused to return any of the cows, their offspring or the money which they received and refused to provide the requested information relating to a contract of sale of some of the cattle to Calicom.

[9] Applicants further states that the Respondent provided a wholly inadequate undertaking not to alienate the cattle, limited only to the adult cattle and not the offspring  and according to Applicants the Respondents adopted the “startling” view that the Respondents are entitled to ownership, profits and benefits of the calves born from the cows.  The implication is that they seek to hold onto the cattle as long as possible, apparently with the aim “to lay claim to the accrual, profits and additional offspring”.

[10] The applicants contend that the Respondent’s conduct makes it apparent that their intention is to hide away and/or dissipate the cattle and specifically also the offspring by disingenuously simulating a sale of the cattle to Calicom, which they contend, “smacks of dishonesty and exudes potential prejudice to the applicants”.  Further that the respondents have already used more than R1.2 million in the form of the cash paid and the proceeds from the sale of the 106 weaners, which the applicants, at all material times, were fully aware of.  Should the applicants also lose the cattle, so the argument goes, they would run an even greater risk of irreparable harm, without providing any factual basis or the alleged harm. The applicants state that if they retain the cattle pending an action the cattle would serve as “security” for the applicants claim.

[11] Applicants further state that the calves are rapidly approaching the age when they can be weaned from the cows and sold, and the respondents fails to provide an undertaking in respect of these, and the implication for the applicants allegedly run into millions of Rand if the respondents do not to return what is due to the applicants, and opportunistically seize the possession of the applicants assets for their own benefit and profit.  They further allege that should the respondents other creditors seize the cattle or cash asset the applicants would suffer substantial prejudice.

[12] Applicants are entitled to harvest soya beans, planted on Respondents farm, for their own profit. The Respondents claim a lien over the soya beans as they state that the land was made available to applicants in anticipation of the conclusion of the agreement for the sale of the Durr Trust’s farm. After the sale agreement did not realise, and applicants sought restitution of the cattle and money, respondents equally sought to be compensated for the use of the land. Applicants’ contention that respondents do not even honour the tepid undertakings which they made, how can they be trusted not to dissipate the cattle and specifically their offspring, is not realistic, nor a ground for urgency as the Court fail to understand why the respondent would not, possibly have a claim for the reasonable value of the use of their land by the applicants to plant their crops. The crops may even be the property of respondents. When the sale agreement did not realise, the rules changed. The applicants seeks restitution, but when the respondent mentioned its possible entitlement to the crops, they are made out as being dishonest and unreliable. The court does not agree with applicants.

[13] Applicant state that on the respondents own version Mr Durr used the money received from applicants and the proceeds of the weaners, to pay his personal expenses, and not that of the Durr Trust. That, according to applicant equates Mr Durr not to be trusted and his undertakings are therefore worthless. Applicants were aware of the fact that Mr Durr had debts to settle, and therefore the weaners were sold to a third party on the applicants’ property.

[14] Applicants lament that the respondents are obstructive when the Respondents’ attorney of record refused to consent to service of the application on his offices, when that was previously agreed to by the attorney. I fail to see how this can be interpreted as a ground for urgency. There was clearly already an agreement in place to serve accordingly. Applicant could have served on the attorney (Botha).

 

LACK OF URGENCY ACCORDING TO RESPONDENTS

[15] Since at least 20 February 2020, the applicants envisaged an urgent application, however, did not launch such application for nearly three months. If the matter was/is as urgent as to seek relief from this court, the applicants need to sufficiently deal with the delay from the initial threat of 20 February 2020, until the institution of this application.  The applicants make vague allegations that the COVID-19 pandemic and subsequent lockdown that allegedly contributed to this delay.

[16] Merely using COVID-19 and the lockdown as an excuse for delaying an urgent application is not sufficient, and the applicants need to explain what specifically caused the failure to launch the application. The country is currently still under lockdown. The applicants should have launched this application as threatened on 20 February 2020, if it was that urgent. Faced with the undertakings provided by the respondents, they should not have approached this court on this urgent basis. Respondents state that the applicants should have informed inform this Court what exactly they could not do under level 5 of the lockdown which they could suddenly do under Level 4 to have this application enrolled on the urgent court. This is not explained at all, and applicants’ statement that COVID-19 lockdown caused the applicants not to launch the application urgently is not correct. They elected to become embroiled in the exchange of correspondence between the attorneys, and finally, on 22 April 2020 in a letter to Respondents attorneys, and realising that the warning of 20 February 2020 was not heeded to by the Respondents, demanded compliance with their demands within 5 days, thereby creating urgency, which is not a ground therefore. One should not create one’s own urgency by failing to act timeously.

[17] The applicants seek for the return of the cattle together with a judgment that the first and the third to fifth respondents be ordered to pay the applicants an amount of R394 680. 00. Monetary relief alone is seldom recognised as a sufficient ground for urgency. The applicants do not justify why such relief is urgently sought from this Court at all, and a type of “hybrid” application is brought. The applicants rely on the idea that the return of the cattle is urgent and therefore the final monetary judgment.  Respondents submit that this specific portion of the relief sought is not urgent and stands to be struck from the roll.

 

THE LAW ON URGENCY AS IT CURRENTLY STANDS

[18] The law on urgency is abundantly clear.  Urgent applications must be brought in accordance with the provisions of rule 6(12) of the Uniform Rules of Court (“The Rules”), with due regard to the guidelines set out in cases such as Die Republikeinse Publikasies (Edms) Bpk vs Afrikaanse Pers Publikasies (Edms) Bpk^[2] as well as a well-known case of Luna Meubelvervaardigers (Edms) Bpk v Makin and Another.^[3]

[19] The Practice Directives[4] (and the rules) requires an applicant, in an urgent application, to set out explicitly the circumstances which render the matter urgent[5].  While an application may be urgent, it may not be sufficiently urgent to be heard at the time selected by the applicants, more so during the Nation-wide lockdown. Further to the aforesaid, the Practice Directives provides that should the practices regarding the proceedings in urgent application not be adhered to, and the application not be enrolled on a date or at a time that is justified, the application will not be enrolled and an appropriate punitive cost order will be made[6].

[20] In the judgment of In re: Several Matters On Urgent Roll 18 September 2012 the Court held that:-

“Further, if a matter becomes opposed in the urgent motion court and the papers become voluminous there must be exceptional reasons why the matter is not to be removed to the ordinary motion roll.  ‘The urgent court is not geared to dealing with a matter which is not only voluminous but clearly includes some complexity and even some novel points of law.’  See Digital Printers vs Riso Africa (Pty) Limited case number 17318/02, an unreported judgment of Cachalia J delivered in this division.”^[7] (Own underlining)

[21] The Court further held that:

“Urgency is a matter of degree.  …  Some applicants who abuse the court process should be penalised and the matters should simply be struck off the roll with costs for lack of urgency.  Those matters that justify a postponement to allow the respondent to file affidavits should in my view summarily be removed from the roll so that the parties can set them down on the ordinary opposed roll when they are ripe for hearing, with costs reserved.”^[8]

[22] The Court went and further stated that the procedure set out in Rule 6(12) is not simply there for the taking.^[9]  It confirmed the principle set out in a case of East Rock Trading 7 (Pty) Limited and Another v Eagle Valley Granite (Pty) Limited and others in which it was held:-

“The import thereof is that the procedure set out in Rule 6(12) is not there for the taking.  An applicant has to set forth explicitly the circumstances which he avers render the matter urgent.  More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course.  The rules allow the court to come to the assistance of a litigant because of the latter, were to wait for the normal course laid down by the rules, it will not obtain substantial readdress.

It is important to note that the rules require absence of substantial redress.  This is not equivalent to irreparable harm that is required before the granting of an interim relief. It is something less.  He may still obtain redress in an application in due course, but it may not be substantial.  Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in this regard.”^[10]  (Own emphasis)

[23] The above principle was once again considered in the case of Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and others ^[11] in which the Court confirmed:

“I proceed to evaluate the respondent’s submission that the matter is not urgent.  The evaluation must be undertaken by an analysis of the applicant’s case taken together with allegations by the respondent which the applicant does not dispute.  Rule 6(12) confers a general judicial discretion on a court to hear a matter urgently  … 

It seems to me that when urgency is an issue the primary investigation should be to determine whether the applicant will be afforded substantial redress at a hearing in due course.   If the applicant cannot establish prejudice in this sense, the application cannot be urgent.

Once such prejudice is established, other factors come into consideration.  These factors include (but are not limited to):  Whether the respondents can adequately present their cases in the time available between notice of the application to them and the actual hearing, other prejudice to the respondent’s and the administration of justice, the strength of the case made by the applicant and any delay by the applicant in asserting its rights.  This last factor is often called, usually by counsel acting for respondents, self-created urgency.” (Own emphasis)

[24] Possible financial prejudice does not entitle a party to any preference before other parties.  Loss that the Applicants may allegedly suffer which has not been identified at all is not sufficient to allow the applicants to be afforded an immediate hearing and it is not the kind of loss that justifies the disruption of the roll and prejudice to other parties, who are awaiting their turn to be heard.^[12]  The fact that irreparable loss may be sustained is in any event in itself not sufficient to establish urgency, especially where an applicant took no action against the respondents for some time, like in casu.^[13]

[25] In Export Development Canada v West Dawn Investments[14] the above decisions were discussed and again confirmed. An applicant must show the absence of substantial redress eventually. It is not equivalent to irreparable harm that is required before the granting of interim relief. If the matter is enrolled to be heard in the normal course the applicants will still be able to prove their case and obtain the necessary redress, should a court find in their favour. There will still be the possibility of substantial redress in future.

 

DISCUSSION

[26] The Respondents are justified in objecting to the very prolix and voluminous founding affidavit consisting (without annexures) of 63 pages... The replying affidavit that should be the shortest document in the bundle is not far behind the founding affidavit, and consists of no less than 46 pages. This kind of application should not be dealt with in the urgent court and the urgent court is not geared to deal with commercial applications that are difficult and intricate, with reference to the facts and the law.  As was aptly stated in Digital Printers vs Riso Africa (Pty) Limited, case number 17318/02, an unreported judgment of Cachalia J:  ‘The urgent court is not geared to dealing with a matter which is not only voluminous but clearly includes some complexity and even some novel points of law.’ (Own underlining) This application should be heard in the normal course.^[15]

[27] In this matter, the applicants have been furnished with undertakings by the respondents as long ago as 30 April 2020 already. The applicants were aware thereof, but decided to launch this voluminous and factually complicated application in the urgent court. There are no grounds provided why the applicants should be forthwith placed in possession of the cattle. The cattle have been in the possession of the Respondents since at least August 2020. It is not the applicants’ case that the cattle is mistreated or that there is any security threat or that they are malnourished. Although Mr Groenewald, in argument raised the risk factor attached to the cattle, it was not the applicants’ case in the papers. The Applicant can inspect the cattle at any reasonable time, and should they find this to be an issue, this application may be re-enrolled on an urgent basis. The sole purpose of the application is the belief that the respondents will sell or dissipate the cattle. By giving the undertakings that the respondents will not sell the animals, which includes the calves, as cleared up by Mr Richard during argument, on the instruction of his attorney, Mr Botha, the applicant lost, any possible urgency.

[28] Which party was responsible for the breakdown in the possible sale agreement is irrelevant in deciding whether the matter deserves to be on this court’s urgent roll. Nor is the existence, or not, of a lien in favour of respondents of any moment at this stage. What is important is the fact that applicant sought undertakings from the respondents, was provided with it, albeit with regards to the rights of inspection somehow belated, but such was given. Even the sixth respondent provided such an undertaking to the applicant. Should the applicants find that respondents breach their undertakings, they may equally urgently enrol this application, as supplemented, again should they want to.

[29] The respondents correctly submit that the monetary judgment sought against the respondents can never be classified as urgent. There are only fleeting statements by the applicants that the respondents are in financial dire straits, but no facts are provided to substantiate the averment.  To exacerbate matters for the applicants, it is appears that they were aware of the respondent plight, and consented, at least by acquiescence, when they were present when the weaners were sold by respondents to a third party to liquidate their debts. The applicants mention that the respondents sold the weaners and used the money so realised to pay Mr Durr’s personal debts, and not that of the Trust without any proof of the allegation. The applicants’ concern is not whose debts have been paid, but that the respondents debts had been paid with their funds. The Court fails to understand the bearing of these payments on urgency. The averments are made in an effort to create urgency that does not exist. The respondents admit that they suffered losses during the previous harvesting season due to hail. The payments of cash and delivery of cattle were made by the applicants having knowledge of the circumstances as the respondents conveyed it to them. They cannot rely on those facts for urgency now. The Applicants should not have given the cash directly to respondents, and cannot lament their position now.

[30] The time that lapsed between the first demand (20/02/20) and the applicants taking action is excessive. In any way to deserve any urgency. The applicants should have explained, apart from referring to the letter written, what was done to launch this application. The lockdown started on 26 March 2020, and applicants were fully aware of the fact that the sale of the farm was not proceeding. The applicants have also not  given grounds to substantiate that they will not be afforded substantial redress in due course. The undertakings by the respondents are sufficient to allay any of the fears of the applicants. The Court is therefore of the view that the application is not urgent and must be struck off the roll.

 

COSTS

[31] The costs in these matters normally follows the event. Applicant had the Respondents’ reasonable undertakings since 30 April 2020, but still resolved to launch this application. Not only was this matter not urgent any more, but also having regard to the structure, composition and prolixity of the founding and replying affidavit, under circumstances where the undertakings sought, with the exception of the inspection-rights, were provided, was unreasonable. The Court is of the view that the costs must be reserved to be determined when the application is heard on the merits, because of the allegations of impropriety by both sides. The inspection undertaking was provided as an afterthought, after the application was served. The substantial undertakings that was sought by applicants were in respect of the dissipation and alienation of the cattle, and those were given by the respective Respondents timeously. The punitive cost order the Court considered against the Applicants was mitigated by the fact that the Respondents withheld the so called “inspection-undertaking” until after service of the application.

 

ORDER

[32] The application is struck off the roll.

[33] The costs are reserved.

                                                                                                       

                                                                                           ________________________

                                                                                           H BRAUCKMANN

                                                               ACTING JUDGE OF THE HIGH COURT

JUDGMENT DELIVERED ELECTRONICALLY DUE TO COVID-19

REPRESENTATIVE FOR THE APPELLANT:  ADV RJ GROENEWALD    

INSTRUCTED BY: GFT PISTORIUS INC theo@tplaw.co.za; collections@tplaw.co.za

REPRESENTATIVE FOR THE RESPONDENT: ADV C RICHARD

INSTRUCTED BY: DR TC BOTHA ATTORNEYS bothaconrad@gmail.com; vicky@vvjvnattorneys.co.za                       

DATE OF HEARING: 20 MAY 2020                                       

DATE OF JUDGMENT: 20 MAY 2020                                     

 

[1] Act 68 of 1981

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