El-Sha Consulting (Pty) Ltd v Serfontein and Others (5149/2021) [2021] ZAFSHC 304 (2 December 2021)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 5149/2021

In the matter between:

EL-SHA CONSULTING (PTY) LTD Applicant

and

JOHAN SERFONTEIN (JNR) First Respondent

(Identity number: [….])

WILLIE DU

PREEZ Second Respondent

JOHAN SERFONTEIN (SNR) Third Respondent

HEARD ON: 12 NOVEMBER 2021

JUDGMENT BY: MATHEBULA, J

DELIVERED ON: The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 02 December 2021. The date and time for hand-down is deemed to be 02 December 2021 at 15H00.

Introduction:

[1] This is an urgent application for the relief set out in part A of the notice of motion. The parties are farmers in the districts of Vredefort and Koppies respectively. The respondents oppose the application on the basis that it is not urgent and does not meet the requirements of urgent interdicts.

[2] According to the applicant’s founding affidavit the averment is that, they entered into a partly oral and partly written partnership agreement with the first respondent on/or about 28 September 2020 in Kroonstad. The salient terms of the agreement were that they will on a fifty-fifty (50/50) basis conduct farming activities of soya-beans and cattle on Vesta and Welverdiend farms. The first respondent owns the former and the latter farm is owned by the third respondent but the second respondent has the right of use thereof.

[3] It was a term of their agreement that the applicant will bring into the partnership agreement needed cash injection for input costs. The agreed duration was for a period of not less than three (3) years and the farms will not be leased during this period. The parties were to split the proceeds (presumably profit) of their harvest on equal basis.

[4] The disagreement surfaced when the crop was harvested and the split was not done in accordance with the agreement. What broke the camel’s back is when the applicant learnt on 29 October 2021 that the first respondent has entered into a lease agreement for the farms with the second respondent, cattle of the second respondent were grazing on the farms and the first respondent had sold cattle forming part of the assets of the partnership.

[5] In the opposing affidavit deposed to by the first respondent on behalf of all the respondents, the first attack is aimed at the question of urgency. The first respondent disputes the assertion of the applicant that he became aware of the full facts on/or about 29 October 2021. Instead he insists that the applicant was aware of the lease or right of use of the land afforded to the second respondent. The applicant, it is averred, was aware of the presence of cattle belonging to the second respondent grazing on the land and that he (second respondent) was preparing the land for cultivation. At no point did he raise concerns that his rights were infringed by the respondents.

[6] On the issue of the partnership, the respondents admitted entering into a joint venture in anticipation of forming a company. The registration of the company did not materialise. Together with the applicant they conducted farming activities for their joint benefit until May 2021. This came to an end because the applicant did not keep his end of the bargain. He failed to provide the necessary financial injection and equipment made available was dysfunctional for farming purposes. The applicant attempted to wrestle ownership of the third respondent’s farm from him through surreptitious tactics. Cancellation of the joint venture was conveyed to the applicant and he duly accepted it.

[7] The first respondent set out that the written agreement entered into by the parties is void for vagueness. The reason, so the argument goes, is that it is impossible to ascertain the rights and obligations of the parties thereto. The applicant was aware that the third respondent was the owner of farm Welverdiend and that the first respondent had no rights over it except to conduct normal farming activities. It is the first respondent’s case that the applicant has failed to satisfy the requirements of an interim interdict.

Urgency:

[8] The central question to be decided first is whether the applicant has met the requirements for bringing an urgent application as set out in Uniform Rule 6(12). The rule requires the applicant to set out explicitly the circumstances that make the matter urgent and the reasons why he cannot be afforded a substantial redress at the hearing in due course. In Luna Meubel Vervaardigers (EDMS.) Bpk. v Makin and Another (t/a Makin’s Furniture Manufacturers) Coetzee J said the following: -

“Mere lip service to the requirements of Rule 6 (12) (b) will not do and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm, which is involved in the time and day for which the matter be set down.”[1]

[9] In this matter the applicant set out the averments that make the matter urgent and that the relations broke down between them on 29 October 2021 termed the trigger event. The applicant avers that if he is not afforded redress in this application, then the planting season will pass and he will not be afforded the opportunity to plant. The respondents vehemently oppose this and avers that on his papers, the applicant must have been aware of the situation on a date well before the aforementioned date. In fact, it is their case that the applicant was aware of the breakdown of the relations in July or August 2021.

[10] I am satisfied that the averments made by the applicant are of such a nature that makes the matter urgent. Should the applicant not be afforded the substantial redress if I do not deviate from the normal redress, the time for planting will have passed making any order inconsequential and of no practical effect. This matter is inherently urgent and there can be no talk of self-created urgency.

[11] This brings me to the consideration of the merits. In our law an applicant seeking interim relief must show the following:[2]

a) a right which he seeks to protect is prima facie established, even though open to some doubt.

b) a well-grounded apprehension of harm.

c) the absence of ordinary remedy.

d) the balance of convenience favours the granting of the interim relief.

[12] The accurate approach to whether the applicant has satisfied the requirements were stated eloquently in Olympic Passenger Services (Pty) Ltd v Ramlagan as follows: -

“it thus appears that where the applicant’s right is clear, and the other requisites are present, no difficulty presents itself about granting an interdict. At the other end of the scale, where his prospects of ultimate success are nil, obviously the Court will refuse an interdict. Between those two extremes fall the intermediate cases in which, on the papers as a whole, the applicants’ prospects of ultimate success may range all the way from strong to weak. The expression “prima facie established though open to some doubt” seems to me a brilliantly apt classification of these cases. In such cases, upon proof of a well-grounded apprehension of irreparable harm, and there being no adequate ordinary remedy, the Court may grant an interdict – it has a discretion, to be exercised judicially upon a consideration of all the facts. Usually this will resolve itself into a nice consideration of the prospects of success and the balance of convenience – the stronger the prospects of success, the less need for such balance to favour the applicant: the weaker the prospects of success, the greater the need for the balance of convenience to favour him. I need hardly add that by balance of convenience is meant the prejudice to the respondent if it be granted.”[3]

[13] The facts upon which the applicant relies are predicated on the written agreement attached to the founding affidavit marked “FA5”. As correctly conceded by Mr Sullivan, it is not a model agreement. The respondents do not deny its existence but raise an issue about its interpretation. I am not called upon to decide on this issue. Looking at the surrounding circumstances, it will appear that the parties were ad idem to create some kind of rights vis-à -vis each other. The third respondent was at all material times part of the negotiations which culminated into the conclusion of the purported agreement. The agreement seemingly created the right of use of both farms in favour of the application. It is on the basis of the aforegoing that I conclude that the applicant has established a prima facie right even if it is open to some doubt. This in my view is a strong prima facie right flowing from the agreement between them. It is trite in our law that agreements must be respected and honoured by the parties.

[14] The first respondent in particular is sitting on two chairs. He avers that the partnership agreement is ambiguous thus of no force and effect. At the same time, he asserts that the partnership agreement has come to an end. His averments are a fishing expedition and he is unsure on which version he is relying on. Any talk of a dissolution of a partnership is a sham. There are no allegations that the parties did account to each other including payments of debts and division of the net proceeds (if any) as it is required by law. Neither are the plans afoot to do so. Only after dissolution of the partnership can the respondents deal with the farms according to their desires. These are further grounds that I conclude that the opposition to the application must fail.

[15] The next question is whether the applicant has shown a well-grounded apprehension of irreparable harm if the interim relief sought is not granted and the ultimate relief is eventually granted. The applicant avers that he will suffer irreparable harm in that he will be unable to plant the soya-beans and the cattle of the second respondent will continue to graze on the land. In the opposing affidavit the applicants aver that they are the ones who will suffer irreparable harm. The first and third respondents will be denied their real rights emanating from their ownership of the farms. Similarly, the second respondent will be denied his rights stemming from the possession and occupation of the lands. The second respondent also stands to lose approximately R850,000.00 of the money invested in the cultivation of the fields. This in turn threatens their very livelihood.

[16] My view is that the allegations made by the applicant show that indeed there are well founded apprehension of harm. Once the planting season has passed, it will be game over for the applicant. The claim of financial ruin by the respondents in the circumstances explained is unfounded. The order sought is not a license for the applicant to use the lands without adhering to the corresponding obligation of sharing the proceeds with the first respondent. In that way the third respondent stands to benefit as well. There can be no talk of any of them suffering irreparable harm. It is also a fact that the respondents are not financially well balanced. Their creditors are hovering over their assets to ultimately execute on the properties. That is another reason to support the apprehension of harm on the part of the applicant.

[17] The third requirement is that the balance of convenience must favour the applicant. I am convinced that more prejudice will be suffered by the applicant than the respondents. Having made a finding that the applicant has established a prima facie right, it follows that this requirement will undoubtedly found to be in existence. Any suggestion that there are alternative remedies is not sustained by the facts. For instance, a claim for damages will take a long time to conclude and will be a nightmare to quantify. The respondents submitted that they will suffer more prejudice because Part B of the application may not be set down deliberately by the applicant. This argument is unfounded because the Uniform Rules of Court allows respondents to set the matter down.

Order:

[18] Accordingly I make the following order: -

18.1. This order serves as an interim order with immediate effect pending the finalisation of Part B of this application;

18.2. The second respondent is prohibited from conducting any farming activities in contravention of the agreement of whatsoever nature on the farm described as Farm Welverdiend 92, Portion No 3 (Remaining Extent), Registration Division Kroonstad, R.d., Free State, Diagram DT4018/1970 in extent 616. 171 hectares also known as the farm “Vesta”;

18.3. The first and third respondents are ordered to immediately after the granting of this order in writing inform the applicant of any lease and the parties and particulars thereof in respect of the Farm Welverdiend 92, Portion 0 (Remaining Extent), District Kroonstad, R.D., Free State, Diagram DT4017/1970 in extent 950,0414 hectares also known as the farm “Welverdiend”;

18.4. The first respondent is prohibited from entering into any further lease agreement with any party or entity in respect of the farm Vesta;

18.5. The first respondent is to allow the applicant unfettered access to the Farm Vesta and Welverdiend to conduct reasonable farming activities on these farms, including but not limited to planting and farming soya-beans on these farms;

18.6. That Part B of this application is postponed sine die;

18.7. The applicant is allowed to supplement its founding papers in respect of Part B of this application;

18.8. In the event that the first and/or the third respondent entered into a lease agreement in respect of the farm Welverdiend with any other entity or individual than with the second respondent the applicant is allowed to approach the court on the same papers as amended and supplemented where necessary for relief.

18.9. The respondents are to pay the costs of this application, jointly and severally, the one paying the others to be absolved.

M.A. MATHEBULA, J

On behalf of the applicant: Adv. J Sullivan

Instructed by: Van Dyk Attorneys

Bloemfontein

On behalf of the respondents: Adv. R Van Der Merwe

Instructed by: Blair Attorneys

[1] 1977 (4) SA 135 (W) at para 137F.

[2] Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another 1973 (4) All SA 116 (A).

[3] 1957 (2) SA 382 (D) at 383C-G.