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CASE NO. 1356/2004

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

JACOBUS PETRUS PRETORIUS (JNR) APPLICANT

and

JACOBA STEFINA COETZEE 1^ST RESPONDENT

MAGDALENA GERTRUIDA BRITS 2^ND RESPONDENT

GERT HENDRIK JACOBUS COETZEE N.O 3^RD RESPONDENT

__________________________________________________________________

JUDGMENT

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MOGOENG JP.

Introduction

[1] I handed down a judgment in this matter on 09 December 2004. The effect of that judgment was that the contract of lease between the Applicant and a certain Cronje (“Roos”), whom I found to be no more than a usufructuary, was automatically extinguished by the death of Roos, and that the Applicant, and whoever enjoyed occupation through him, was ordered to leave the farm.

[2] Applicant seeks leave to appeal against that judgment either to the Full Bench of this Division or to the Supreme Court of Appeal on the grounds set out below.

1. The Respondents failed to comply with the provisions of s 5 of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act No. 19 of 1998 (“PIE”);

2. After the death of Roos the Respondents were happy with the continued existence of the contract of lease and considered themselves to be bound by its terms. I deal with these issues in the same order below.

Compliance with PIE

[3] It is common cause that the Respondents were not interested in running a farming operation on the land in question. They wanted to sell the land. The Applicant was given the opportunity to purchase the farm. He tried but failed. He was then given notice in January 2004 to vacate the farm by the end of July 2004, by which time the money that he had already paid for rental would have been exhausted. He refused to vacate the farm at the end of July and was still in occupation of the farm as at the time when judgment was handed down.

[4] Applicant was, therefore, given 6 months notice to vacate the farm. He refused to do so effectively frustrating the Respondents’ plan to sell the farm or to do as they choose with it. He did so knowing that as an unrehabilitated insolvent, he has no significant assets that the Respondents could, upon obtaining a Court order, realise to pay in full whatever damages and losses that they may have incurred as a result of his continued unauthorised and unlawful occupation of the farm. He suggests, without any substantiation whatsoever, that whatever damages or losses the Respondents may suffer, they could be recovered from him. Needless to say, this is an assurance that comes from the unrehabilitated insolvent, who undeniably could not even secure a loan to plant crops on the land let alone the loan to purchase the land.

[5] I was and still am satisfied that there was, as at the time the application was launched, a real and imminent danger of the Applicant’s continued occupation of the farm causing a substantial financial loss to the Respondents. The balance of convenience favoured the Respondents and in the light of the Applicant’s status as an unrehabilitated insolvent, who could not secure a loan to purchase the farm and to plant crops on it, the Respondents do not have any other effective remedy but an urgent mandatory interdict.

[6] Notice was duly given to the Applicant in terms of s 5(2) of the PIE Act. There is information in the papers before me from which it can easily be concluded that the three requirements set out in s 5 of the PIE Act were met as set out above. After all these requirements are, as Mr de Bruin correctly pointed out, nothing more than a codification of the common law requirements of an interdict. I will now deal with the effect of clause 4 on the contractual relationship between the parties.

The effect of clause 4

[7] Applicant relies on clause 4 of a contract between his trust and the Respondents, that never came into operation, to show the existence of a contract of lease between him and the Respondents. That clause provides as follows:

“4. BESIT

Besit van die eiendom word aan die KOPER gegee om datum van registrasie van transport van die eiendom in die naam van die KOPER welke datum af dit vir die KOPER se uitsluitlike risiko, wins en verlies is. Die partye plaas op record dat die voormalige vruggebruikster van die eiendom DOROTHEA ELIZABETH CRONJE die eiendom verhuur het aan JACOBUS PETRUS PRETORIUS kragtens ʼn huurkontrak gedateer 3 Augustus 2001, die inhoud waarvan die partye erken aan hul bekend is. Die eiendom work verkoop onderworpe aan die huurkontrak en die VERKOPER seder en maak hiermee oor uit en uit en delegeer heirmee oor uit en uit al regte en verpligtinge in terme van die huurkontrak insluitende die reg op die huurkontrak te beëindig indien sodanige reg sou bestaan op voorwarde dat die KOPER die VERKOPER vrywaar teen enige eise vir terugbetaling van huurgeld of ennige ander eis van welke causa wat ookal en onderneem die KOPER om sodanige eise, indien dit sou bestaan, te ontmoet en te vereffen of andersins na te kom.”

(My emphasis)

[8] It is interesting to note that during the application for leave to appeal, the Applicant no longer challenged the finding that, in law, the lease agreement between him and Roos was automatically cancelled by the death of Roos. He is now only saying that the Respondents were aware of the contract between him and Roos, they were happy with the existence of the agreement and considered themselves bound by it. Apart from reiterating what is stated in paragraphs 18 and 19 of the judgment on the merits, the following observations need to be made.

[9] Applicant was occupying the farm as at the time when his trust sought to purchase it from the Respondents. He had been on that farm for some 34 years. Having decided to purchase the farm, logic dictates that, whether the pre-existing lease agreement was known to have expired or not, he had to be allowed to continue to occupy the farm pending the actual transfer of the farm to him. It would have been ludicrous and against any semblance of goodwill for the seller to have told the Applicant (purchaser) to first vacate the farm and to only come back to the farm after the loan would have been secured. All of the above would explain why clause 4 came into being in the first place. The emboldened portion of clause 4 is nothing more than a recordal of what in fact happened and what the parties knew. This is the essence of the evidential value of clause 4. The portion that precedes and the one that follows the emboldened part of clause 4, are incapable of independent existence from the then intended contract of sale. Since the contract did not materialise, these two portions ceased to be of any value to any party. They owe their life to an existing and valid contract of sale. Furthermore, the parties’ lack of understanding of what is the correct legal effect of Roos’ death on the lease agreement, or their convenient pretension that the contract had not come to an end when it in fact and in law did, cannot prevent the Court from giving that death its true and correct legal effect on the contract.

[10] To the extent that the Applicant may be seeking to suggest that clause 4 is evidence of the conclusion of a tacit agreement, he has to show that the following requirements set out in the case of Standard Bank of SA Ltd v Ocean Commodities Inc 1983 (1) SA 276 (A) at 292B were satisfied:

“In order to establish a tacit contract it is necessary to show, by a preponderance of probabilities, unequivocal conduct which is capable of no other reasonable interpretation than that the parties intended to, and did in fact, contract in the terms alleged. It must be proved that there was in fact consensus ad idem.”

There is nothing in clause 4 which manifests unequivocal conduct which is capable of no other reasonable construction but that the parties, especially the Respondents, either intended the pre-existing lease agreement to run until 2007 or intended to conclude a new and similar lease agreement which would be valid until 2007 and did in fact cause that to happen. The only portion of clause 4 that could be understood to be an agreement between the parties to extend the life of the lease agreement is the portion which starts with the words ‘Die eiendom word verkoop onderwerpe aan die huurkontrak . . . ’. But as I have said before, this portion of clause 4 is completely meaningless if no contract of sale eventuates or if the conditions, which if met would operationalise the contract, were not met as in this case. It will be recalled that clause 4 is under the heading “BESIT”. Clause 4 deals with possession of the farm prior to and after the registration of transfer of the farm to the Applicant’s trust. This is the setting and the context within which this entire clause 4 must be interpreted and understood as stated in paragraph 9 above. Clause 4 was not and could never have been intended to create any agreement or arrangement independent of the very contract of sale which necessitated the coming into being of clause 4. The only portion of clause 4 which can be said to be evidence of some reality or fact, capable of existing independently of the contract of sale, is the bold portion. Unfortunately for the Applicant, it is incapable of the construction that he contends for.

[11] There is no reasonable prospect of another Court upholding the Applicant’s contentions. For this reason, the application for leave to appeal is refused with costs.

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M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 13 MAY 2005

DATE OF JUDGEMENT : 27 MAY 2005

COUNSEL FOR THE RESPONDENT : ADV B.C. STOOP

COUNSEL FOR THE APPLICANTS : ADV J.P. DE BRUIN SC

ATTORNEYS FOR THE RESPONDENT : MINCHIN & KELLY

(Ins. by PHILIP DU TOIT INC.)

ATTORNEYS FOR THE APPLICANTS : SMIT STANTON INC.

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