Gedult 240 Onderdeeling 5 Vaaldam Settlement CC and Others v MSW Estates CC and Others (4376/2020) [2020] ZAFSHC 265 (29 December 2020)

Case number: 4376/2020

In the matter between:

GEDULT 240 ONDERDEELING 5 VAALDAM

SETTLEMENT CC

1st Applicant

CERTAIN

PROPERTY OWNERS AT

THE

PENINSULA

2nd to 69th Applicants

and

MSW

ESTATES CC

1st Respondent

LOUIS JOHANNES SMAL (JNR )

2nd Respondent

LOUIS JOHANNES SMAL (SNR)

3rd Respondent

JACO

JOHAN SMAL

4th Respondent

QUADTRADE CC

5th Respondent

PLAAS

UITKYK DISTRIK HEILBRON CC

6th Respondent

BAREND

JACOBUS JANSEN VAN RENSBURG 7th Respondent

THE REGISTRAR OF DEEDS. BLOEMFONTEIN 8th Respondent

FREE STATE MEC FOR ECONOMIC,

SMALL BUSINESS DEVELOPMENT, TOURISM

AND

ENVIRONMENTAL AFFAIRS

9th Respondent

HEARD ON:

14 DECEMBER 2020

JUDGMENT BY:

C REINDERS, J

DELIVERED ON:

29 DECEMBER 2020

[1] This matter came before me as an urgent application. The application was opposed and opposing papers were filed by the 1st to 6th respondents (hereafter for sake of convenience referred to as the "Smal respondents").

[3] The relief sought by the Applicants in its amended notice of motion reads as follow:

"1. The non-compliance by the applicants with the ordinary forms, processes and/or modes of notice and service provided for in the Uniform Rules of Court is condoned and this application is disposed of, under Rule 6(12)(a), as a matter of urgency;

2. That, pending the determination or resolution of an action to be initiated as soon as possible and, in any event, within 10 days of the hearing of this application for an order inter alia declaring the parties' relevant environmental, common law, contractual and/or constitutional rights and obligations ("the action"), the first to seventh respondents, as well as any employees, agents and/or other persons acting on the instruction of, through or under these respondents, be and are interdicted and restrained from taking any steps, or permitting their employees and/or agents to take any steps, towards marketing, selling and/or transferring, to any purchaser or purchasers, all or any of:

2.1 the remaining extent of Portion 5 and Portion 452 (of 5) of the farm Vaaldam Settlement No. 1777, as depicted in SG No. 1488/2007, attached marked NM1, i.e. the nature reserve situated adjacent to the area known as Fish Eagles Bend (also known as the Conservancy);

2.2 Portions 59 and 60 of farm Uitkyk 506, as depicted in SG No. 1489/2007 and 1490/2007, attached marked NM2, i.e. the nature reserve situated adjacent to the area known as Angler's Loft;

2.3 Portion 444 of the farm Vaaldam Settlement No. 1777, as depicted in SG No. 1479/2007, attached marked NM3, i.e. the nature reserve situated adjacent to the area known as Otter's Pond;

2.4 Portions 447 and 451 of the farm Vaaldam Settlement No. 1777, as depicted in SG No. 1482/2007, attached marked NM4, i.e. the nature reserve situated adjacent to the area known as Hippo Bay;

2.5 Portion 449 of the farm Vaaldam Settlement No. 1777, as depicted in the extract of the Surveyor General's diagram, attached marked NMS i.e. the nature reserve situated adjacent to the area known as Hedgehog Rock; and

2.6 Portion 452 of the farm Vaaldam Settlement No. 1777, i.e. the nature reserve situated in the vicinity of the entrance and guard house of The Peninsula

("the imperilled land);

3. That, pending the determination or resolution of the action, the first to seventh respondents, as well as any employees, agents and/or other persons acting on the instruction of, through or under the respondents, be and are interdicted and restrained from taking any steps, or permitting their employee and/or agents to take any steps, towards repurposing all or any of the imperilled land for any activities or operations other than those of a residential nature reserve;

4. That, pending the determination of resolution of the action, the eighth respondent be and is directed to register a caveat over the imperilled land such that no transfer of the whole or any part of the imperilled land may take place until a court determines otherwise;

5. That the first and second respondents, together with such other respondents as may oppose the relief sought in this application, be and are directed, jointly and severally, to pay the costs of the application, including the costs of engaging two counsel; and

6. That the applicants be and are granted further and/or alternative relief."

[4] The purpose of the application is therefore to obtain interim orders preserving the status quo pending the institution of an action ostensibly for declaratory relief.

[5] A short summary of the facts are that the applicants own property in an enclosed and secured estate that foregrounds lifestyle living within nature, known as the Peninsula on Vaal. Applicants aver that it provides a unique combination of waterfront residential properties on the Vaal dam, and adjacent thereto tracts of common property forming an ecological green belt and residential nature reserve. The common property is comprised of diverse fauna and flora species and wildlife. For over two decades residents have had essentially unrestricted access to and use and enjoyment of the property for various activities, for instance birdwatching and game viewing. Applicants complain that the Smal respondents have now sold and intends to transfer a portion of this property known as Fish Eagles Bend (also known as the "Conservancy") to the seventh respondent for the purpose of commercial cattle farming which requires the property to be parameter fenced, ploughed and seeded and into which cattle will be placed. In fact, the respondents have commenced ploughing and seeding the property adjacent to the areas known as Fish Eagles Bend and Angler's Loft, although this was halted by an interim court order issued in the Gauteng High Court. Applicants submit that the common property is imperilled by the complained of conduct and unless halted by an interim order of this court, will irreversibly dispose of and

repurpose the common property such that applicants would not be able to obtain substantial redress in due course in the event of being successful with the proposed action to be instituted by them.

[6] The respondents filed opposing papers and disputed that the matter was urgent. They seriously disputed the past use of the land and aver that the land had always been openly and continuously farmed on. In addition, they aver that applicants apart from having an alternative remedy, did not show any prima facie right. It was submitted by Adv GL Grabler SC, appearing on behalf of the Smal respondents, that in some respects the relief sought are so vague it cannot be enforced, for which reason alone I should decline

to grant the orders.

[7] Both parties submitted comprehensive heads of argument for which I am indebted. In fact, applicants employed the services of four council, of which two are senior. The papers are voluminous and comprise just over a thousand pages.

[8] At the commencement of the proceedings I was satisfied that the matter was urgent and so ordered. I do not intend to deal with the reasons therefore.

[9] It is trite that to obtain an interim interdict an applicant must establish a prima facie right (even if open to some doubt), a reasonable apprehension of irreparable and imminent harm to that right if an interdict is not granted, that the balance of convenience favours the grant thereof and that the applicants must have no other remedy.

See: Setlogelo v Setlogelo 1914 AD 221

National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC) at para [41]

[10] Prima facie I was satisfied that applicants have shown a reasonable apprehension of irreparable and imminent harm, that the balance of convenience favours the granting of the interdict and that they have no other remedy. My concern, as pointed out to Adv S Grabler SC for the applicants at the commencement of the hearing of the application, was whether applicants have established a prima facie right.

[11] In Webster v Mitchell 1948 (1) SA 1186 (W) at 1189 the test on onus of proof was thus formulated as

"the right to be set up by an applicant for a temporary interdict need not be shown by a balance of probabilities. If it is "prima facie" established though open to some doubt, that is enough.

The proper manner of approach I consider is to take the facts as set out by the applicant, together with any facts set out by the respondent, which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered. If serious doubt is thrown upon the case of the applicant, he could not succeed in obtaining temporary relief, for his right, prima facie established, may only be open to "some doubt"."

[12] In Goo/ v Minister of Justice 1955 (2) SA 682 (C) at 688 the court, however, qualified this dictum:

"With the greatest respect, I am of opinion that the criterion prescribed in this statement for the first branch of the enquiry thus outlined is somewhat too favourably expressed towards the applicant for an interdict. In my view the criterion on an applicant's own averred or admitted facts is: should (not could) the applicant on those facts obtain final relief at the trial."

[13] The applicants in essence based the prima facie right on environmental legislation and regulations, common law and constitutional rights and obligations but were not able to indicate which law or constitutional rights in particular. In addition they attempted to rely on certain contractual rights and undertakings by the Small respondents which in any event were disputed by the first to sixth respondents. In argument Mr Grabler suggested that the applicants will also rely on the principles of nuisance and neighbour law.

[14] It suffice to say that I cannot conclude that applicants have established any prima facie right. In fact, I have serious doubts if there exist any grounds for the orders they apparently seek to enforce in the preposed main action as set out in this application.

[15] I regretfully therefore conclude that I cannot grant the interim relief sought by the applicants. The result is that I make the following order:

The application is dismissed with costs, such costs to include the costs of the employment of two counsel.

On behalf of the Applicants:

Adv S Grabler SC

Assisted by:

Adv R Pearse SC

Adv N Nxumalo

Adv C Avidon

Instructed by:

Edward Nathan Sonnenbergs Inc c/o Webbers

BLOEMFONTEIN

On behalf of the 1st to 6th Respondents: