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Van Der Nest v Bronkhorst and Others (M203/16) [2016] ZANWHC 19 (29 April 2016)

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IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST DIVISION, MAHIKENG)

CASE NO.: M203/16

DATE: 29 APRIL 2016

In the matter between:

ROBERT VAN DER NEST................................................................................................APPLICANT

And

PIETER JOHANNES LODEWYK BRONKHORST.........................................1ST RESPONDENT

COMBRINK KGATSHE INCORPORATED.....................................................2ND RESPONDENT

THE REGISTRAR OF DEEDS............................................................................3RD RESPONDENT

APIE VAN RENSBURG........................................................................................4TH RESPONDENT

JUDGMENT

Landman J:

[1] Robert van der Nest, the applicant, applies on an urgent basis to interdict Pieter Johannes Lodewyk Bronkhorst, the first respondent from alienating the farm that he purchased on 16 May 2007. The first respondent’s attorney is the second respondent; the Registrar of Deeds is the third respondent; and Apie van Rensburg, who has lately purchased the farm from the first respondent is the fourth respondent.

[2] On 16 May 2007 the applicant and the first respondent entered into a written agreement in terms of which the applicant purchased from the first respondent portion 21 (a portion of portion 17) of the farm Kleinfontein 463, Registration Division JP, North West Province for a purchase price of R570 000 payable against transfer. The applicant took occupation of the property and has been paying occupational interest of R6000 per month. The property has not been transferred into his name.

[3] The sale is subject to two conditions. The applicant was required to obtain a loan on or before 1 September 2007 and to provide a written guarantee in respect of the purchase price within 30 days of 1 September 2007.

[4] The applicant says that he has complied with these conditions. However, it is apparent from his loan agreement with ABSA Bank that the loan agreement was granted on 24 January 2008. What the applicant has not said is that the first respondent waived any rights that he had arising from the fact that the loan was obtained out of time.

[5] The applicant says, as regards the guarantee, that in order to provide a guarantee for payment of the purchase price against transfer of the property, the first respondent was required to sign the necessary transfer documents. The first respondent ‘initially’ agreed to do so on condition that the applicant settle certain disputes between them with regard to an entity known as DM Debt Services CC.

[6] Two matters arise from this. First, there is no indication on the papers that the guarantee was tendered timeously to the first respondent. Secondly, the applicant says that the disputes were settled and it was a material term of the settlement agreement that the parties agreed that the first respondent would continue to grant transfer of ownership of the immovable property to the applicant in terms of the sale agreement. It is not clear whether this agreement was written or oral, but it is not contained in any document and I assume that it was an oral agreement. However, the first respondent denies the averments. The first respondent admits that there were negotiations between the parties, but says they have not settled their disputes.

[7] The first respondent has raised the issue of prescription. It is clear that the applicant’s right to claim specific performance of the contract i.e. the debt, at the very best for the applicant and accepting even that the fact that the loan was obtained out of time was condoned, arose on 24 January 2008. The debt would have become prescribed by 23 January 2011. Action was instituted in April 2016. But it is possible that the continued payment and receipt of occupational interest may be taken as a factor showing that the agreement was still operative. I need not decide this.

[8] In order for the applicant to obtain an interim interdict, it is incumbent on the applicant to show that he has a prima facie right to the relief claimed, even though it may be open to some doubt. To do this, the applicant would have to show, on a prima facie, basis that the court hearing the main application would find in his favour. The applicant has not set out the necessary facts in his founding affidavit which would go to show that the two conditions of the sale agreement were met or that the time periods were waived.

[9] It is unnecessary to consider the remaining requirements for an interim interdict as the applicant has not crossed the first hurdle. In the premises the application falls to be dismissed.

Costs

[10] Mr Fourie, who appeared for the first respondent has sought a special order for costs. I have not struck out the application on the basis of a lack of urgency even though the case for urgency is extremely weak. I am of the view that costs on an attorney and client scale are warranted as the first respondent has been put to the expense of opposing this application on an urgent basis  .

Order

[10] I make the following order:

The application is dismissed with costs that are to be taxed on an attorney and client scale.

A A Landman

Judge of the High Court

APPEARANCES:

Date of hearing: 28 April 2016

Date of Judgment: 29 April 2016

Counsel for the Applicant: Adv R A Slater instructed by Van

Rooyen Tlhapi Wessels

Counsel for the Respondent: Adv M J Fourie

Instructed by Maree & Maree Attorneys