Brink v Dell and Others (3898/2021) [2021] ZAFSHC 329 (12 December 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 3898/2021

In the matter between:

THOMAS FRANCOIS

BRINK

Applicant

and

FREDERICK WHITE

DELL

First Respondent

THE REGISTRAR OF

DEEDS BLOEMFONTEIN Second Respondent

HEARD ON:

2 DECEMBER 2021

JUDGEMENT BY: LOUBSER, J

DELIVERED ON: 17 DECEMBER 2021

[1] This is an application to declare the notarial lease agreement concluded by Olivier’s Rust Landgoed (Pty) Ltd and the First Respondent to have been validly cancelled by the Applicant, and for the Second Respondent to remove any reference to the notarial lease agreement from the title deeds of the farm Moolmanspruit in the district of Ficksburg.

[2] The factual matrix of the matter appears from the founding affidavit of the Applicant, and is as follows: At all relevant times, Olivier’s Rust Landgoed was the registered owner of Moolmanspruit. During the course of 2017, Olivier’s Rust ran into financial trouble, which resulted in proceedings instituted by Standard Bank against the company. In those proceedings, Hefer, AJ ordered the return of the farm implements on Moolmanspruit to the bank.

[3] According to the applicant, a director of Oliver’s Rust, mr. Rudi Gericke, was afraid at the time that the financial difficulties of the company would eventually also lead to the loss of Moolmanspruit. The First Respondent was a friend of mr. Gericke. The two of them then negotiated a notarial lease agreement of 25 years between Olivier’s Rust and the First Respondent, which notarial lease was registered in the Deeds Office on 21 June 2018. Later in that year, on 2 August 2018, Daffue, ADJP granted an order of payment by Olivier’s Rust in the amount of some R10 million in favour of Standard Bank.

[4] Pursuant to that order, the Sheriff rendered a nulla bona return in the execution process, and on 11 July 2019 Olivier’s Rust was finally wound up. On 7 October 2020 the Applicant bought Moolmanspruit at the auction in execution held by the liquidators for an amount of some R1.4 million. In terms of clause 7.6 of the sale agreement, the sale was subject to any lease, notwithstanding any omission by either the seller or the auctioneer to point out the obligations arising from such a lease.

[5] The applicant further states that he was indeed provided with a copy of the notarial lease at the time when he signed the sale agreement. He did not read the document, however, because he did not understand the contents thereof. On 26 March 2021, he became the registered owner of Moolmanspruit. He now says that the notarial lease with which the farm is encumbered, was concluded under highly suspicious and questionable circumstances.

[6] It appears from the following affidavit that these suspicious and questionable circumstances, as alleged, are not relied upon by the Applicant as a ground for the cancellation of the notarial lease. The Applicant rather relies on a breach of the terms of the notarial lease itself by the First Respondent as a ground for the cancellation.

[7] In this respect the Applicant further points out that the notarial lease provides that the First Respondent would not be entitled to sub-let any of his rights under the lease without the consent of the lessor. After the auction, he found that there were two sub-tenants present on the farm without such consent, namely the wife of Mr. Gericke and a company by the name of JLB Boerderye. Mrs Gericke was occupying the dwelling on the farm, while JLB Boerderye was sub-renting portions of the farm lands. This was in breach of the terms of the notarial lease, he says, because neither the joint liquidators nor Olivier’s Rust had given the First Respondent written consent to sub-let any portion of the farm to any of them. As a consequence, his attorneys addressed a letter to the First Respondent’s attorneys, and when no response was received, he cancelled the notarial lease on 26 November 2020. As a result, JLB Boerderye vacated the farm, but not the First Respondent and Mrs. Gericke. Meanwhile Mr. Gericke has also returned from abroad and is now living on the farm with his wife, the Applicant says.

[8] The applicant relies on a second ground for the cancellation. He says that following the abovementioned cancellation and the obvious refusal of the First Respondent and the Gerickes to vacate, he went to inspect the farm on 30 March 2021. He says he found the property in a state of neglect. For instance, Eskom poles were cut off, the house was to some extent in a delipidated state, the electric fence of some camps were destroyed, and he found the land overgrazed and contours in need of maintenance. Fences and gates were rusted and broken and the natural grazing were being invaded by Slangbos and Khakibos. On 13 May 2021 the Applicant’s attorneys conveyed this information to the First Respondent’s attorneys, pointing out that these conditions constituted a further breach of the terms of the notarial lease. In this letter, the lease was again cancelled. In further correspondence, these allegations were either denied or explanations were given for the condition of the farm. In essence, the First Respondent’s attorneys denied that the Applicant ever had the right to cancel the lease.

[9] The applicant also attached to his founding affidavit a report by a natural scientist, dr. P. J. Malan, who had inspected the veld conditions on the farm on 28 June 2021. In his extensive report, he came to the conclusion that there were signs of poor veld management and overgrazing on the farm lands. He also found signs of the invasion of Slangbos on the farm.

[10] In his answering affidavit, the First Respondent pointed out that he had already concluded a lease agreement with Olivier’s Rust on 6 February 2017 to lease Moolmanspruit. This lease was for a period of 9 years and 11 months. This lease was later converted into the present notarial lease. The obligations of the First Respondent in terms of the first lease were much the same as in the notarial lease as far as the maintenance of the farm is concerned. The lessor also had to give prior written consent for any sub-lease. On 20 June 2018, the first respondent obtained written consent from Olivier’s Rust to sub-let the dwelling and arable land on the farm, and a copy of that consent is attached to the First Respondents affidavit.

[11] The First Respondent further dealt with the problems found by the Applicant on the farm, one by one, and he alleged that the problems either already existed when he entered into the different leases, or were caused by interventions outside his control. Damage referred to by the Applicant relates either to natural wear and tear, or were already remedied as soon as practically possible. The farm is now in a better condition than when he started leasing it, he says.

[12] Merely a week and a half ago the First Respondent filed a supplementary opposing affidavit with a report by his own expert attached thereto. This affidavit was accompanied by an application for condonation for the filing of the affidavit, which application this court granted at the hearing of the matter.

[13] The First Respondent’s expert, dr. HJ Fouchè, is also a natural scientist with an impressive curriculum vitae, as is the case with dr. Malan. He visited the farm on 15 October 2021, and found no signs of overgrazing. The Slangbos weeds were probably present before the commencement of the lease, he says. According to dr. Fouchè, the condition of the fields or grazing on Moolmanspruit is better than what he saw on adjacent properties. His report is no doubt directly in disagreement with the views expressed by dr. Malan.

[14] At the hearing of the application, both counsel appearing for the respective parties were ad idem that the defences raised by the First Respondent in relation to the grounds for the first cancellation, had adequately disposed of those grounds. They were in agreement, and wisely so in my view, that the issues for adjudication have been narrowed down to the question whether the Applicant was entitled to cancel because of overgrazing and because of the presence of invader plants like Slangbos on the farm.

[15] Now the notarial lease agreement provides in clause 4.2 thereof that the lessee “shall keep the premises free of any undesirable weeds, such as wildebokriet, etc. and shall prevent the spread thereof on the premises”. In clause 4.10 it is stipulated that the lessee “will not overgraze the leased property and will only graze animals in accordance with proper agricultural practices”. The crisp question is then whether the First Respondent has breached any of these clauses. As already indicated, there is clearly a dispute between the parties as far as this question is concerned. In terms of the law applicable to application proceedings, this dispute constitutes a real dispute of fact which arises from the affidavits before the Court.

[16] In terms of the rules of this Court[1] and in terms of a host of authorities on this subject, the Court may dismiss an application if the dispute of fact should have been foreseen by the applicant. In the present case, the inference is unavoidable that the Applicant has indeed foreseen a dispute of fact before the application was launched, if regard is had to the correspondence between the two sets of attorneys at the time.

[17] The law applicable to applications further provides that a final order, such as the order sought in the present application, will only be granted if the facts stated by the respondent, together with the facts alleged by the applicant that are admitted by the respondent, justify such an order.[2] To put it differently, where there is a dispute of fact in application proceedings, the court must deal with the matter on the basis of the respondent’s version, coupled with the admitted facts in the applicant’s papers.[3] These are then the principles upon which this Court must adjudicate this application.

[18] The dispute relating to the alleged overgrazing of the veld on the farm needs to be considered first. The Applicant, who is a businessman from Walkerville, in Gauteng, says in his founding affidavit that during his inspection of the farm on 30 March 2021 he counted 105 heads of cattle grazing on the farm, while the 166 hectares of grazing could only accommodate 41 heads of cattle. This is so because the ratio for cattle in that area was 1 head of cattle for every 4 to 5 hectares of grazing. As mentioned earlier, the Applicant also provided a report by dr. Malan in support of his allegations. Dr. Malan visited the farm on 28 June 2021 to inspect the veld conditions and the grazing capacity of the veld. His visit took place some one and a half months after the lease was cancelled by the Applicant.

[19] According to dr. Malan, he counted, 81 adult cows grazing on the farm on that particular day. The farm could sustainably only carry 44 heads of cattle in normal conditions. On the day of his inspection, the farm could only carry 28 cows with their calves and a bull, having regard to the current state of the veld. Dr. Malan concluded that he found definitive overgrazing and poor veld management practices in the farm.

[20] In his answering affidavit, the First Respondent informs that he is a farmer with more than 20 years of farming experience in the eastern Free State and Ficksburg area. He regards himself as an expert cattle farmer with a good understanding of grazing and modern farming principles and techniques. He further denies the right of the Applicant to have cancelled the notarial lease, since there was no material breach of the terms of the lease.

[21] Referring to the alleged overgrazing, the First Respondent admits that at certain periods of time, more than 100 cattle will graze on the farm. This is so because he farms on a rotational basis, using modern farming practices, where he grazes four farms and the camps on those farms at intervals, moving cattle between the four farms and their camps. He denies that the farm is overgrazed. He points out that he will be leasing the farm for more than 20 years to come, and that overgrazing will not be in his best interest. He maintains that the farm is in a good state of order, and that the grazing is in a better condition than when he started leasing it.

[22] The first Respondent later filed a report by his own expert, dr. Fouchè, who visited the farm on 15 October 2021. That was five months after the lease was cancelled by reason of, inter alia, the condition of the veld and the issue of overgrazing. Dr. Fouchè found by comparing neighbouring farms, that there is no indication of overgrazing on the farm. Animal density, at a given stage, is not an indication of overgrazing, and high-density grazing for a short period of time is not overgrazing, he reported. He also expressed the view that the presence of Slangbos is not an indicator of overgrazing. (The view of dr. Malan in this regard is directly opposite). The condition of the grazing on the farm is better than on the adjoining properties, dr. Fouchè found.

[23] In his replying affidavit, the Applicant pointed out that the First Respondent did not dispute the fact that when Applicant visited the farm on 30 March 2021, he found 105 heads of cattle grazing on the farm, while the land available for grazing could only accommodate 41 heads of cattle. Furthermore, the First Respondent did not dispute the fact that the natural grazing were being destroyed by Slangbos and Kakiebos plants. It is therefore common cause that the terms of the notarial lease were breached by the First Respondent, the Applicant says.

[24] It is uncertain whether the observations of dr. Fouchè take the matter any further. Dr. Fouchè visited the farm some 5 months after the cancellation of the lease, and it is unclear what effect the lapse of time could have had on the conditions of the veld and the grazing since the time when the Applicant and dr. Malan made their observations regarding those conditions. In this respect the observations of the First Respondent himself must be regarded as more reliable. Although he does not dispute the fact that on certain days there may be more than 100 heads of cattle grazing on the farm, he explains that he conducts the grazing on a rotational basis. He further explains that, as an experienced cattle farmer, he will not allow overgrazing on the farm, because it will not be in his best interest to do so. His explanation means that on some days there may be many heads of cattle on the farm, and other days very few heads of cattle, if any. He strongly denies any overgrazing which could have entitled the Applicant to cancel the lease.

[25] It is therefore not correct to say that the common cause fact of 105 head of cattle grazing on the farm on a particular day, while the farm could only accommodate 41 heads of cattle, is a conclusive indication of overgrazing. There is much more to it, as explained by the First Respondent. His explanation is supported by dr. Fouchè, who reported that a high animal density, at a given stage and for a short period of time, is not an indication of overgrazing. In addition, the Regulations published under the Conservation of Agricultural Resources Act,[4] provides that every land user shall restrict the number of animals kept on the veld of his farm to no more than the number that is obtained by dividing the area of the veld by the applicable grazing capacity referred to in Regulation 10.[5] But then the particular Regulation goes on to provide that “such number may on occasion be exceeded on condition that the veld shall under all circumstances effectively be protected against deterioration and destruction”.

[26] As for the issue of overgrazing, I therefore come to the conclusion that the First Respondent has presented a version that cannot be summarily dismissed as being fictitious or without any merit. I have already indicated that applications must be adjudicated on the basis of the version presented by the respondent in cases where a real dispute of fact arises from the papers before a court. As far as the alleged overgrazing is concerned, the Applicant therefore cannot succeed.

[27] Lastly, I turn to the aspect of the presence of Slangbos and the other invader plants on the farm. The Applicant mentioned in his founding affidavit that on 30 March 2021 he found that the First Respondent had failed to keep the property free from weeds and that the natural grazing were being destroyed by Slangbos and Kakiebos. The overgrazing had led to the natural grazing being destroyed and being overtaken by undesirable weeds, which constituted a breach of the notarial lease, he says. Dr. Malan mentions in his report that when he visited the farm on 28 June 2021, he found signs of the invasion of Slangbos, which was due to overgrazing and poor veld management practices.

[28] In answering these allegations, the First Respondent says that he uses modern farming techniques to control invasive species, and it is an ongoing practice. Although he does not dispute the presence of Slangbos, he repeats that through modern farming practices, he is improving the grazing on the farm. He reiterates that it will not be in his best interests as a long-term lessee to allow the farm to be taken over by weeds that will destroy the natural grazing. He specifically denies that invasive weeds have taken over the natural grazing, since the grazing on the farm is in a better condition than when he started leasing same. He says that the amount of Slangbos has been dramatically reduced by him from the time when he took occupation of the farm.

[29] According to the report of dr. Fouchè, he found Slangbos vegetation communities on the farm that are old, moribund colonies many years old. They were most probably already present before the start of the lease, he says. He also expressed the view that the presence of Slangbos is not an indicator of overgrazing.

[30] When considering the version of the First Respondent in relation to the Slangbos on the farm, it is apposite to be mindful of what the notarial lease agreement provides. It provides that the lessee shall keep the premises free of any undesirable weeds, “and shall prevent the spread thereof on the premises”. The version of the First Respondent is that the Slangbos on the farm were most probably already present when he started to rent the property, and that he is controlling the invasive species on an ongoing basis. He is, in other words, adhering to the provisions that he “shall prevent the spread of species”.

[31] Once again, in terms of the law applicable to application proceedings, the version presented by the First Respondent must prevail. Also on the issue of Slangbos or other invader plants, the Applicant therefore cannot succeed.

[32] It speaks for itself that the result is unfortunate for the Applicant. On the other hand, he knew at the time of the auction that he was buying Moolmanspruit subject to a notarial lease agreement. Also, before this application was launched, he knew exactly on which grounds the First Respondent would resist the application, because those grounds were fully disclosed in correspondence by the attorneys of the First Respondent beforehand. He was therefore aware that a dispute on the facts of the matter would probably arise from the affidavits before the court. Despite this, he decided to proceed by way of an application instead of following the safer route of action proceedings.

[33] The following order is therefore made:

1. The application is dismissed with costs.

P. J LOUBSER, J

For the Applicant: Adv. W. F. Wannenburg

Instructed by: Esthe Muller Inc. Vereeniging

per Kramer Weihmann Inc., Bloemfontein

For the First Respondent: Adv. W. J. Groenewald

Instructed by: Adrian’s & Claasen Attorneys, Ficksburg

per Claude Reid Inc., Bloemfontein

/roosthuizen

[1] Rule 6(5)(g)

[2] Plascon Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) and Thint v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions 2009 (1) SA 1 (CC)

[3] Buffalo Freight Systems v Crestleigh Trading 2011 (1) SA 8 (SCA)

[4] Act no 43 of 1983

[5] Regulation 11