Khumalo and Others v Grafcor Farming (Pty) Limited and Another (LCC128/2015) [2016] ZALCC 16 (16 September 2016)

Khumalo and Others v Grafcor Farming (Pty) Limited and Another (LCC128/2015) [2016] ZALCC 16 (16 September 2016)

The court held that proper service of the interlocutory application on the AFT Property Trust, as the proposed substituted respondent, is a matter of substantive law and not mere formality. Service on Crafcor's attorneys, even if one of Crafcor's directors is also a trustee of AFT, does not satisfy the requirements of the Uniform Rules or the Land Claims Court Rules. The separate legal personalities of Crafcor and AFT must be respected, and AFT cannot be presumed to have notice of the application without proper service. The court cannot order substitution of AFT as a party to the action until proper service is effected. The applicants are granted leave to serve the application on AFT in...

Citation
[2016] ZALCC 16
Parties
Applicant: Piet Khumalo & Others; Respondent: Crafcor Farming (Pty) Limited; Respondent: The Trustees of the AFT Property Trust
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
16 September 2016
Case Number
LCC128/2015
Procedural Posture
Interlocutory Application / Application for Substitution and Interdict Prior to Trial
Outcome
Application postponed pending proper service on the AFT Property Trust; costs reserved as costs in the cause.
Judges
H Barnes, M Sello
Legal Topics
Labour Tenant Claims, Joinder and Substitution, Service of Process, Trust Litigation
Land and Property Civil Procedure Labour Tenant Claims Joinder and Substitution Service of Process Trust Litigation

Case Brief

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Parties

Piet Khumalo & Others

Applicant

Crafcor Farming (Pty) Limited

Respondent

The Trustees of the AFT Property Trust

Respondent

Procedural Posture

Interlocutory Application / Application for Substitution and Interdict Prior to Trial

Legal Issues

  1. 1 Whether the substitution of the first respondent with the second respondent is appropriate given the change in ownership of the farm.
  2. 2 Whether proper service of the application on the second respondent, a trust, has been effected in accordance with the rules.
  3. 3 Whether the court can grant relief against the attorneys of the first respondent without them being cited as parties.

Ratio Decidendi

The court held that proper service of the interlocutory application on the AFT Property Trust, as the proposed substituted respondent, is a matter of substantive law and not mere formality. Service on Crafcor's attorneys, even if one of Crafcor's directors is also a trustee of AFT, does not satisfy the requirements of the Uniform Rules or the Land Claims Court Rules. The separate legal personalities of Crafcor and AFT must be respected, and AFT cannot be presumed to have notice of the application without proper service. The court cannot order substitution of AFT as a party to the action until proper service is effected. The applicants are granted leave to serve the application on AFT in...

Court Disposition

Application postponed pending proper service on the AFT Property Trust; costs reserved as costs in the cause.

Orders

  • All papers in the interlocutory application must be served on the AFT Property Trust by no later than 23 September 2016.
  • The AFT Property Trust may file an answering affidavit by no later than 7 October 2016.