Kotze v Oosthuizen and Another (Appeal) (CIV APP FB11/2024) [2024] ZANWHC 285 (13 November 2024)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: CIV APP FB 11/2024

CASE NO: UM171/2023

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:

TIELMAN KOTZE

Appellant

AND

JACOBUS J. C. OOSTHUIZEN

1ST Respondent

JOHANNES HENDRIK DELPOERT N.O.

2ND Respondent

CIVIL APPEAL

CORUM: DJAJE DJP; REID J & RAMOLEFE AJ

Delivered: This judgment was transmitted by way of email to the legal representatives of the parties. The date of hand down is deemed to be

13 NOVEMBER 2024.

ORDER

1. The appeal is dismissed.

2. The appellant is ordered to pay costs on scale B.

JUDGMENT

DJAJE DJP

[1] This appeal is against the judgment of Petersen J which was handed down on 26 September 2023 confirming the rule nisi of 18 August 2023.

[2] On 18 August 2023 the respondents, who were the applicants in the Court a quo, were granted an urgent ex parte order as follows:

“1. THAT: The non-compliance by the Applicants with the ordinary forms, processes and/or modes of notice and service provided for in the Rules of Court are condoned and this matter is heard as a matter of notice and service provided for in the Rules of Court are condoned and this matter is heard as a matter of urgency in terms of the provisions of Uniform Rule 6(12)(a) on an ex parte basis.

2. THAT: A Rule Nisi is issued calling upon the Respondent to show cause (if any), on 19th day of October 2023 why an order in the following terms it should not be made final with costs:

3. THAT: The First and Second Applicants, any employee and/or any authorised agent of the First and Second Applicants are:

3.1 Allowed access to the farm known as Portion 2 of the Farm Stonehenge 400, Registration Division IN, North West Province, measuring 856,5320 hectares held by deed of transfer Nr T740/2023 (“the Farm”) except for the areas marked “D” and “E” on the map attached hereto as annexure “X”.

3.2 Allowed free and undisturbed and exclusive use of the Farm except for the areas marked “D” and “E” on the map attached hereto as annexure “X”.

4. THAT: To achieve access to the farm First and Second Applicants, any employee and/or any authorised agent of the First and Second Applicants are authorised to install a separate gate/s other than the current 4(four) gates providing access to the farm.

5. THAT: The Respondent, any employee of the Respondent any person acting on the Respondent’s instruction be interdicted and restrained from:

5.1 prohibiting access of the First and Second Applicants, any employee and/or any authorised agent of the First and Second Applicants to the Farm except for the areas marked “D” and “E” on the map attached to this notice of motion as annexure “X”.

5.2 interfering with any activities of the First and Second Applicants, any employees and/or any authorised agent of the First and Second Applicants.

6. THAT: The Respondent and/or any person occupying the residence on the Farm are allowed to occupy the areas marked “D” and “E” on the map attached to this notice of motion as annexure “X”

pending the outcome of eviction proceedings to be instituted by the Applicant.

7. THAT: Prayer 3 to 6 shall be of immediate and interim force and effect pending the return date of this application.

8. THAT: The Respondent may anticipate the return date on 48-hour notice to the attorneys of record of the Applicants.

9. THAT: Costs of this application shall be reserved for determination by the Court hearing this matter on the return date.”

[3] The background of the matter can be as follows:

The Makesafe Family Trust bought a farm known as Farm May in Vryburg, North West. The farm was owned by DTL Boerdery CC which was

liquidated in July 2022. It was bought in November 2022 on auction for an amount of five million two hundred and fifty thousand Rand (R5 250 000-00). This amount excluded VAT and transfer duty.

The respondents are the trustees of the Makesafe Trust. In June 2023 the respondents took possession of the farm and commenced some work on it which included creating mandatory fire breaks inside and around the farm. The appellant was the sole shareholder of liquidated DTL Boerdery and was allowed by the respondents to continue occupying the residential part of the farm. It was agreed that the appellant would provide immediate and unrestricted access to the farm except for the residence part of the farm.

[4] At the time of creating the fire breaks, the appellant locked all the gates leading to the farm denying the respondents access. The respondents brought a spoliation application which was dismissed. After the dismissal of the spoliation application, the respondents launched an urgent application which resulted in the order of 18 August 2023. As a result of the appellant’s conduct, the relationship between the appellant and the respondents became acrimonious.

[5] In essence, the order of 18 August 2023 was to allow the respondents, as the owners of the farm, access to their property except the residential part occupied by the appellant. This was pending an eviction process. It was this order that was confirmed on 26 September 2023.

[6] In dealing with the issue of ownership of the farm, the Court a quo held as follows:

“[13] I turn to what lies at the heart of the opposition by the respondent, i.e., the relief sought by the applicants. The respondent makes a sweeping statement regarding the legality of the ownership of the farm, without setting out facts on which this allegation is based, save to state that he will succeed on appeal, and he is advised that the sale and all transactions were illegal. The DTL Boerdery CC is in final liquidation. The farm was sold by the liquidators following the granting of the final liquidation order and an unsuccessful application by the respondent to stay the sale of the farm at auction. The farm has been registered in the name of the Trust of which the applicants are trustees. I re-iterate the high watermark of the respondent’s case is what he refers to as the pending rescission application of the final liquidation order, which he says is on appeal. If the respondent were successful with the appeal, the provisional liquidation order of the Supreme Court of Appeal remains in place and ownership of the farm does not revert to DTL Boerdery CC or vest any rights in the respondent who was a member of DTL Boerdery

CC. The implication is simply that the Court will have to revisit the question whether or not the final order should be granted.

[14] The Trust is a third party that purchased the farm at auction following the final liquidation of DTL Boerdery CC. It cannot be said that the Trust is a party to the litigation between the liquidators of DTL Boerdery and the liquidating creditor. It appears to be caught in the crossfire of litigation in which it was not and is not a party. In the absence of any facts controverting the ownership of the farm by the Trust, it must be accepted that the Trust presently is the owner of the farm and entitled to all rights of ownership.

[15] If the respondent is successful in his bid to have the liquidation of DTL Boerdery set aside in its totality, he at most has a claim against the liquidators for the value of the farm, which does not detract from the ownership of the farm by the Trust.”

[7] In the main the appellant’s ground of appeal is that the order by the Court a quo has the same effect as an interim eviction order granted without compliance with Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”).

Submissions

[8] The appellant argued that the order of 26 September 2023 is final in nature and that its effect is that an eviction order was granted against the appellant. In addition, the argument is that there was no compliance with the provisions of PIE. The respondents contended that the order was final and as such not appealable.

[9] We were referred to the Supreme Court of Appeal decision in Zweni v Minister of Law and Order of the Republic of South Africa 1993 (1) SA 523 (A) where the court dealt with attributes of a judgment or order as follows:

“In the light of these tests and in my view of the fact that a ruling is the antithesis of a judgment or order, it appears to me that, generally speaking, a non-appealable decision (ruling) is a decision which is not final (because the court of first instance is entitled to alter it), nor definitive of the rights of the parties nor has the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.”

[10] The Supreme Court of Appeal in TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and Others 2023 (5) SA 163 (SCA) dealt with the doctrine of finality and the interest of justice in appealability of orders as follows:

“[30] Even if this is so as a matter of principle, as the defendant’s council reminded us, a number of decisions of this court have been willing, with different degrees of separation, to part from Zweni, or subsume Zweni under the capacious remit of the interest of justice. I do not here essay a general account of appealability. I do affirm, though, that the doctrine of finality must figure as the central principle of consideration when deciding whether a matter is appealable to this Court. Different types of matters arising from the High Court (I put it no higher normatively) warrant some measure of appreciation that goes beyond Zweni or may require an exception to its precepts. Any deviation should be clearly defined and justified to provide ascertainable standards consistent with the rule of law. Recent decisions of this Court that may have been tempted into the general orbit of the interest of justice should now be approached with the gravitational pull of Zweni.”

[11] This Court is not called upon to determine the issue of eviction between the parties. The eviction proceedings will determine the appellant’s right to be on the property. The order clearly provides that the appellant can continue residing on the property until eviction proceedings are instituted. This is not a final order that determines the rights of the appellant on the property. The judgment of the Court a quo in no way affects the rights of the appellant. At this stage there is no reason for the respondents to comply with the provisions of PIE as the order of the Court a quo allows the appellant to continue residing on the property. There is accordingly no basis for this Court to entertain the issue of eviction as no such proceedings have been instituted.

[12] The respondents remain the owners of the property and were entitled to the order granted on 18 August 2023 and confirmed on 26 September 2023. The sale of the farm to the trust / respondents has not been set aside. Even if the appellant can institute proceedings to rescind the liquidation order of DTL Boerdery CC, the sale of the farm would still be valid. This should be the end of the matter and the appeal be dismissed on that basis.

[13] It is trite that costs follow the result and in this matter the appellant is unsuccessful and should pay the costs if the appeal.

Order

[14] Consequently, the following order is made:

J T DJAJE

DEPUTY JUDGE PRESIDENT

NORTH WEST HIGH COURT

I agree

F REID

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION

K D RAMOLEFE

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING

: 13 SEPTEMBER 2024

DATE OF JUDGMENT

: 13 NOVEMBER 2024

COUNSEL FOR THE APPELLANT : ADV C WESSELS

COUNSEL FOR THE RESPONDENT : MR M WESSELS