South African National Parks v Addo Afrique Estate (Pty) Ltd and Others (1201/2010) [2011] ZAECGHC 40 (25 August 2011)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION - GRAHAMSTOWN

Case number: 1201/2010

In the matter between:

SOUTH AFRICAN NATIONAL PARKS

And

ADDO AFRIQUE ESTATE (TYP) LTD …...................................................1st RESPONDENT

RIDGE FARM CC ….............................................................................2nd RESPONDENT

MARK ANTHONY BIGGS …...................................................................3rd RESPONDENT

LARA JEAN BIGGS …..........................................................................4th RESPONDENT

GARY JOHN LOGAN ….........................................................................5th RESPONDENT

LESLIE DAWN LOGAN …......................................................................6th RESPONDENT

ADDO AFRIQUE SAFARI LODGE CC …...................................................7th RESPONDENT

JEROF NGQUSE …..............................................................................8th RESPONDENT

NOTHINI NGQUSE …..........................................................................9th RESPONDENT

JOEY PIETERSE ….............................................................................10th RESPONDENT

FLORENCE PIETERSE ….....................................................................11th RESPONDENT

ROBERT JOHN TAPSON N.O …............................................................12th RESPONDENT

BELINDA TAPSON 13th RESPONDENT

(Trustees of the Marize Trust, IT 469/2009)

ANTHONY LAURISTON BIGGS ….........................................................14th RESPONDENT

GYSBERT JACOBUS VAN DEVENTER …................................................15th RESPONDENT

DEPARTMENT OF LAND AFFAIRS ….....................................................16th RESPONDENT

SUNDAYS RIVER VALLEY MUNICIPALITY …...........................................17th RESPONDENT

REGISTRAR OF DEEDS/CAPE TOWN …................................................18th RESPONDENT

FIRST NATIONAL BANK LIMITED ….....................................................19th RESPONDENT

ABSA BANK LIMITED ….....................................................................20th RESPONDENT

JUDGMENT

SMITH J:

Introduction

[1] This application concerns the legality of the rezoning, subdivision and disposal of portions of land, being the remainder of Farm Vista no 367, Alexandria ("the property"), which abuts the Addo National Park and is traversed by the R342 Road between Paterson and Addo.

[2] The Applicant, namely the South African National Parks (established in terms of the National Parks Act, No. 57 of 1976), seeks an interim interdict restraining the First to Seventh Respondents and the Twelfth to Thirteenth Respondents from disposing of, transferring or encumbering any of the properties constituting subdivisions or portions of the aforesaid property and from effecting

any improvements or developments on the aforesaid property pending the outcome of an action or application to be instituted by the Applicant against the said Respondents for an order reviewing and setting aside the rezoning, subdivision and transfer of the aforesaid subdivisions and/or portions of the property and for an order that the property be transferred to the Applicant at a purchase price of R3 million rand.

[3] The Applicant seeks no relief in respect of portions 58 and 59 which are registered in the names of the Eighth and Ninth Respondents and the Tenth and Eleventh Respondents respectively. The Applicant has declared that it accepts that these subdivisions, having been transferred to landless farm workers, fall within the ambit of the provisions of the Provision of Land and Assistance Act no 126 of 1993, ("the Act").

[4] The Applicant seeks relief on the following bases:

(a) When it purchased the property from the Fourteenth Respondent ("Biggs") during 2001, it acquired a contractual right of pre-emption. Biggs has sold and transferred the property to the First Respondent without offering it to the Applicant first. The Applicant is therefore entitled to exercise its right of pre-emption and in due course to obtain an order of specific performance in relation thereto.

(b) The approval purportedly granted by the Sixteenth Respondent in terms of s.l0(3) of the Act to rezone and sub­divide the property is unlawful and liable to be reviewed and set aside.

Factual Background

[5] On 11 October 2001 the Applicant and Biggs entered into an agreement of sale in terms whereof the latter sold 780 hectares of the farm Vista no 367, Alexandria, to the Applicant at a purchase price of Rl 005 136. It is common cause that the property was utilized for agricultural purposes, namely for commercial farming.

[6] Paragraph 14.1 of the written agreement of sale states the following:

"The seller undertakes to first offer the remainder of the farm Vista no 367 (after subdivision as described in 13) to the purchaser for sale at the same terms and conditions he can sell it to a third party, should the seller at any time decide to sell it. The purchaser has the right to accept the offer to purchase that land within 30 days of being notified of the offer"

[7] On 12 February 2008 Biggs passed transfer of the property to the First Respondent without first offering it to the Applicant for sale. The purchase price was an amount of R3 million rand.

[8] The Applicant has alleged that Biggs and the Fifteenth Respondent ("Van Deventer") are both directors of the First Respondent. It has been contended on behalf of the Applicant that the First Respondent therefore took transfer of the property being well aware of the alleged fraudulent breach of the right of pre-emption. The Applicant stated that it would immediately have exercised the right had it been informed of the intended transaction.

[9] Before the property was transferred to the First Respondent, Biggs and Van Deventer obtained permission, purportedly in terms of the provisions the Act, to rezone and subdivide it into 48 portions.

[10] The First Respondent is the registered owner of portions 11 to 18, 20, 22 to 27, 31, 32, 41 to 43 and 49 to 55 of the property. The second Respondent is registered owner of portions 28 ; 36; 37' 38; 39; 44; 45; 46; 47 and 48.

[11] The other portions are owned as follows:

(a) The Third Respondent is the registered owner of portion 29 having purchased it from the First Respondent for an amount of R52 339 during February 2008.

(b) The Fourth Respondent is the registered owner of portion 30 having purchased it from the First Respondent for an amount of R58 372 during February 2008.

(c) The Fifth Respondent is the registered owner of portion 33 having purchased it from the First Respondent for an amount R58 543.

(d) The Sixth Respondent is the registered owner of portion 34 having purchased it from the First Responded for an amount of R61 713 during February 2008.

(e) The Seventh Respondent is the registered owner of portion 35 having purchased it from the First Respondent for an amount of R150 000 during February 2008. There is a registered bond over this portion in favour of the Twentieth Respondent for the amount or Rl million rand.

(f) The Eighth and Ninth Respondents are the registered owners of portion 58. This portion was donated to them by the First Respondents and transferred to them on 12 February 2008.

(g) The Tenth and Eleventh Respondents are the registered owners of portion 59. This portion was also donated to them by the first Respondent and transferred to them on 12 February 2008.

(h) The Twelve and Thirteenth Respondents are the trustees of the Marize Trust which is the registered owner of portion 19. This portion was purchased from the first Respondent for an amount of R500 000 and transferred to them on 5 February 2010.

(i) The Twenty-first Respondent is the owner of portion 21.

[12] It is common cause that Van Deventer approached Biggs during 2005 with a view to purchasing a portion of the property. They eventually constituted a joint venture for the purpose of developing the entire property. During 2006 they engaged the services of a professional land surveyor and planning consultant to assist with the planning of the envisaged development.

[13] On 23 October 2006 the consultants made an application on behalf of Biggs and Van Deventer to the Department of Land Affairs (the Sixteenth Respondent) in terms of s. 10 of the Act. That application was approved on 13 November 2006.

[14] On 6 December 2006 the Seventeenth Respondent, being the Sundays River Valley Municipality, approved the building plans in respect of two residences located on two of the subdivided portions. The construction of the two residences was completed in June 2008. On 24 April 2007 the Eastern Cape Department of Roads and Transport granted consent for the construction of two access points

along the R352 road. The general plan in respect of the development was approved by the Surveyor- General, purportedly acting in terms of s.10 (3) of the Act, on 17 August 2007.

[15] The Seventeenth Respondent approved building plans in respect of the "Gate house", being the access point to the property, on 26 September 2007 and construction thereof was completed during June 2008. In addition to the construction of the "Gate House" and the two residences, the Respondents proceeded to level, grade and pave internal roads and to erect a game fence.

[16] On 8 October 2007 the Deputy-Director of the Sixteenth Respondent, one V L Loest, addressed a letter to the Registrar of Deeds, Cape Town wherein he stated, inter aiia, the following:

"This letter serves to inform the registrar of deeds; Cape Town that the project Adele Afrique (see proposal dated 23 October 2006) has been approved in terms of s. 10(3) of the Provisions of Land and Assistance Act of 1993 (Act no 126 of 1993). In particular this approval refers to the Surveyor General Plan No. 2641/2007.

In addition to the consent in terms of s.10 (3) of the aforesaid Act, it is confirmed that no rezoning application and or environmental impact assessment is necessarily required by the owners of the aforementioned property, including the proposed subdivisions, should the said owner wish to execute fractional ownership development thereon in terms of inter alia the Share Block Control Act of 1980 (Act no 59 of 1980), provided that the local Municipality endorses the same.

The Registrar of Deeds is herewith requested to register the properties accordingly."

[17] The Registrar of Deeds effected transfer of the property from Biggs to the First Respondent on 12 February 2008. On the same day various other portions of the subdivided property were transferred to the other Respondents. Portions of the property were also donated to the Eighth and Ninth and Tenth and Eleventh Respondents in order to secure their tenure. The First Respondent has

since proceeded to market the development and to conduct the business of a luxury tourist facility.

[18] The Applicant first took issue with the First Respondent regarding the development during 2009. On the 18th of May 2009 the Applicant's attorneys, Le Roux inc., addressed a letter to the First Respondent wherein it stated, inter alia, that the First Respondent's purported reliance on the provisions of the Act for the rezoning and subdivision of the property was an abuse of the provisions of the Act. [19] It also expressed concern about the fact that portions to the north of the tarred road measuring some 45.37 hectares, had been rezoned and designated for the erection of either a hotel, resort or associated facility. The Applicant further demanded an undertaking from the First Respondent that it would not proceed any further with the development failing which an urgent application would be launched in the High Court for interim relief pending the final determination of its application to set aside the rezoning and subdivision of the property. [20] The first Respondent's attorneys replied to the aforesaid letter on 25 May 2009 effectively refusing to provide any undertakings. There was no further correspondence between the parties until 8 March 2010 when the Applicant's attorneys addressed another letter to the First Respondent's attorneys wherein it for the first time referred to the right of pre-emption and stated that it intended to enforce the said right. It sought a further undertaking from the First Respondent by close of business on Thursday 11 March 2010 that it would not proceed with the development, failing which an application would be launch. No such undertaking was provided and the application was eventually launched on 20 April 2010. Legal requirements for interim relief [21] The Applicant seeks an interim interdict and will therefore have to establish the following: (a) A prima facie right; (b) A well grounded apprehension of irreparable harm if the interim rule is not grounded and the ultimate relief is eventually granted; (c) That the balance of convenience favours the granting of the interim interdict; and (d) That the Applicant has no other satisfactory remedy. [22] The granting of an interim interdict is a discretionary remedy and the aforementioned requisites are therefore considered by our courts not in isolation, but holistically. Thus where an Applicant has established a strong prima facie right the court may in the exercises of its discretion place less emphasis on the other requirements. See in this regard Erasmus and others v Senwes Ltd and others [2005] ZAGPHC 5; 2006 (3) SA 529 (T) at 540. In the matter of Olympic Passenger Service Pty Ltd v Ramlagan 1957 (2) SA 382 D at 383E-F, Holmes J said the following: "... 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 discretion, to be exercised judicially upon 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." [23] It is required of an applicant seeking interim relief to establish a prima facie right "though open to some doubt". In deciding whether or not the Applicant has established a prima facie right, the correct approach is to consider the facts set out by the Respondent which the Applicant cannot dispute and to decide whether, with regard to the inherent probabilities and the ultimate onus, the Applicant should on those facts obtain relief at the trial. See: Webster v Mitchell 1948 (1) SA 1186 (W) at 1189: see also: Ferreira v Levin NO and other; Vreienhoek v Powell NO and other 1995 (2) SA 813 (W) aT 817 F-H. [24] It is therefore necessary to undertake at least a preliminary assessment of the merits of an Applicant's case in order to properly exercise the discretion to grant interim relief. See: Ferreira v Levin at page S17(supra). Applicant's right of pre-emption [25] It is common cause that the Applicant's right of pre-emption in respect of the property placed a contractual obligation on Biggs to offer the property for sale to the Applicant before proceeding with the sale and transfer of the property to the First Respondent. The First to Seventh and Fourteenth the Fifteenth Respondents initially took the point in their answering papers that

the Applicant's right of pre-emption was invalid by reason of the invalidity of the agreement of sale into which it was incorporated.

This point has however since been abandoned. [26] A right of pre-emption is a personal right which entitles the purchaser to step into the shoes of the third party by unilateral declaration of intent, where a seller concludes a contract of sale with the third party contrary to such right. In such a case a contract of sale will be deemed to have been concluded between the seller and the holder of the right of pre-emption. See: Associated South African Bakeries (Pty) Ltd v Oryx and Vereinigte Backereien (Pty) Ltd and Andere 1982 (3) SA 893 (A) at 907 E-G where Van Heerden AJA said the following: "(a) Behalwe dat die houer van *n voorkoopsreg bloot persoonlike reg het, word geen tersaakiike onderskeid tussen enersyds, sy reg en, andersyds, (n naastingsreg weat ex lege voortspruit en 'n jus retractus getrek nie. (b) Indien 'n verkoper in stryd met ln voorkoopsreg 'n koopkontrak met *n derde aangaan, kan die koper deur'n eensydige wilsverklaring in die plek van die derde tree. *n Koopkontrak word dan geag aangegaan te gewees het tussen die verkoper en die houer van die voorkoopsreg. (c) Indien lewering reeds geskied het, kan die reghebbende nie met sy persoonlike reg die koopgoed in die hande van die derde opvolg nie tensy laasgenoemde bewus was van die bestaan van die voorkoopsreg.

[18] The Applicant first took issue with the First Respondent regarding the development during 2009. On the 18th of May 2009 the Applicant's attorneys, Le Roux inc., addressed a letter to the First Respondent wherein it stated, inter alia, that the First Respondent's purported reliance on the provisions of the Act for the rezoning and subdivision of the property was an abuse of the provisions of the Act.

[19] It also expressed concern about the fact that portions to the north of the tarred road measuring some 45.37 hectares, had been rezoned and designated for the erection of either a hotel, resort or associated facility. The Applicant further demanded an undertaking from the First Respondent that it would not proceed any further with the development failing which an urgent application would be launched in the High Court for interim relief pending the final determination of its application to set aside the rezoning and subdivision of the property.

[20] The first Respondent's attorneys replied to the aforesaid letter on 25 May 2009 effectively refusing to provide any undertakings. There was no further correspondence between the parties until 8 March 2010 when the Applicant's attorneys addressed another letter to the First Respondent's attorneys wherein it for the first time referred to the right of pre-emption and stated that it intended to enforce the said right. It sought a further undertaking from the First Respondent by close of business on Thursday 11 March 2010 that it would not proceed with the development, failing which an application would be launch. No such undertaking was provided and the application was eventually launched on 20 April 2010.

Legal requirements for interim relief

[21] The Applicant seeks an interim interdict and will therefore have to establish the following:

(a) A prima facie right;

(b) A well grounded apprehension of irreparable harm if the interim rule is not grounded and the ultimate relief is eventually granted;

(c) That the balance of convenience favours the granting of the interim interdict; and

(d) That the Applicant has no other satisfactory remedy.

[22] The granting of an interim interdict is a discretionary remedy and the aforementioned requisites are therefore considered by our courts not in isolation, but holistically. Thus where an Applicant has established a strong prima facie right the court may in the exercises of its discretion place less emphasis on the other requirements. See in this regard

Erasmus and others v Senwes Ltd and others [2005] ZAGPHC 5; 2006 (3) SA 529 (T) at 540. In the matter of Olympic Passenger Service Pty Ltd v Ramlagan 1957 (2) SA 382 D at 383E-F, Holmes J said the following:

"... 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 discretion, to be exercised judicially upon 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."

[23] It is required of an applicant seeking interim relief to establish a prima facie right "though open to some doubt". In deciding whether or not the Applicant has established a prima facie right, the correct approach is to consider the facts set out by the Respondent which the Applicant cannot dispute and to decide whether, with regard to the inherent probabilities and the ultimate onus, the Applicant should on those facts obtain relief at the trial. See: Webster v Mitchell 1948 (1) SA 1186 (W) at 1189: see also: Ferreira v Levin NO and other; Vreienhoek v Powell NO and other 1995 (2) SA 813 (W) aT 817 F-H.

[24] It is therefore necessary to undertake at least a preliminary assessment of the merits of an Applicant's case in order to properly exercise the discretion to grant interim relief. See: Ferreira v Levin at page S17(supra).

Applicant's right of pre-emption

[25] It is common cause that the Applicant's right of pre-emption in respect of the property placed a contractual obligation on Biggs to offer the property for sale to the Applicant before proceeding with the sale and transfer of the property to the First Respondent. The First to Seventh and Fourteenth the Fifteenth Respondents initially took the point in their answering papers that

the Applicant's right of pre-emption was invalid by reason of the invalidity of the agreement of sale into which it was incorporated.

This point has however since been abandoned.

[26] A right of pre-emption is a personal right which entitles the purchaser to step into the shoes of the third party by unilateral declaration of intent, where a seller concludes a contract of sale with the third party contrary to such right. In such a case a contract of sale will be deemed to have been concluded between the seller and the holder of the right of pre-emption. See: Associated South African Bakeries (Pty) Ltd v Oryx and Vereinigte Backereien (Pty) Ltd and Andere 1982 (3) SA 893 (A) at 907 E-G where Van Heerden AJA said the following:

"(a) Behalwe dat die houer van *n voorkoopsreg bloot persoonlike reg het, word geen tersaakiike onderskeid tussen enersyds, sy reg en, andersyds, (n naastingsreg weat ex lege voortspruit en 'n jus retractus getrek nie.

(b) Indien 'n verkoper in stryd met ln voorkoopsreg 'n koopkontrak met *n derde aangaan, kan die koper deur'n eensydige wilsverklaring in die plek van die derde tree. *n Koopkontrak word dan geag aangegaan te gewees het tussen die verkoper en die houer van die voorkoopsreg.

(c) Indien lewering reeds geskied het, kan die reghebbende nie met sy persoonlike reg die koopgoed in die hande van die derde opvolg nie tensy laasgenoemde bewus was van die bestaan van die voorkoopsreg.

[27] In this regard it was contended on behalf of the Applicant that knowledge of the existence of the right of pre-emption should be imputed to the First Respondent by virtue of the fact that Biggs was at all material times a director of the First Respondent . [28] Mr Goosen SC, who appeared for the First to Seventh and Fourteenth to Fifteenth Respondents, submitted that in order to succeed with the application for interim relief the Applicant must show that the circumstances of the breach of the right of pre-emption entitle it to claim specific performance against the present holders of titles. If it is unable to do so, Mr Goosen submitted, it would not be entitled to an interim interdict on this basis because it may well be limited to a damages claim only. [29] It is so that the Third, Fourth, Fifth, Sixth, Twelfth and Thirteenth Respondents denied any knowledge of the pre-existing right of pre­emption. In fact all the Respondents who have taken transfer of portions of the land during February 2008 have denied any knowledge of the right of pre-emption. [30] Mr Van Rooyen SC, who appeared on behalf of the Applicant, however submitted that the knowledge of the pre-existing right of pre­emption should also be imputed to the following Respondents for the following reasons: (a) To the Seventh Respondent being one of only two members of the First Respondent. The Fifteenth Respondent (who was also one of the two directors of the First Respondent) and the wife of the Fifteenth Respondents are members of the Seventh Respondent. (b) Biggs had knowledge of the right of pre-emption which knowledge is ascribable to the First and Second Respondents as he is also member of the Second Respondent. (c) The Twenty-first Respondent has as its directors the Fifteenth Respondent and Biggs. It is therefore in the same position as the First Respondent. I am of the view that it is indeed probable that the Applicant should be able on this basis to prove knowledge of the right of pre-emption by these Respondents at a trial or in application proceedings in due course. These Respondents are not in the same position as the bona fide purchasers, namely the Third, Fourth, Fifth, Sixth, Twelfth and Thirteenth Respondents, in respect of whom there is no evidence of prior knowledge of the right of pre-emption or the alleged irregular rezoning and sub­division of the property. Validity of approval in terms of slO (3) of Act [31] Mr Van Rooyen submitted that, in the event, if the Applicant is able to establish at a trial or in an application in due course that the transfer of the property to the First Respondent was a nullity by reason of non­compliance with the Act, then the subsequent sales and transfers of the

[27] In this regard it was contended on behalf of the Applicant that knowledge of the existence of the right of pre-emption should be imputed to the First Respondent by virtue of the fact that Biggs was at all material times a director of the First Respondent .

[28] Mr Goosen SC, who appeared for the First to Seventh and Fourteenth to Fifteenth Respondents, submitted that in order to succeed with the application for interim relief the Applicant must show that the circumstances of the breach of the right of pre-emption entitle it to claim specific performance against the present holders of titles. If it is unable to do so, Mr Goosen submitted, it would not be entitled to an interim interdict on this basis because it may well be limited to a damages claim only.

[29] It is so that the Third, Fourth, Fifth, Sixth, Twelfth and Thirteenth Respondents denied any knowledge of the pre-existing right of pre­emption. In fact all the Respondents who have taken transfer of portions of the land during February 2008 have denied any knowledge of the right of pre-emption.

[30] Mr Van Rooyen SC, who appeared on behalf of the Applicant, however submitted that the knowledge of the pre-existing right of pre­emption should also be imputed to the following Respondents for the following reasons:

(a) To the Seventh Respondent being one of only two members of the First Respondent. The Fifteenth Respondent (who was also one of the two directors of the First Respondent) and the wife of the Fifteenth Respondents are members of the Seventh Respondent.

(b) Biggs had knowledge of the right of pre-emption which knowledge is ascribable to the First and Second Respondents as he is also member of the Second Respondent.

(c) The Twenty-first Respondent has as its directors the Fifteenth Respondent and Biggs. It is therefore in the same position as the First Respondent.

I am of the view that it is indeed probable that the Applicant should be able on this basis to prove knowledge of the right of pre-emption by these Respondents at a trial or in application proceedings in due course. These Respondents are not in the same position as the bona fide purchasers, namely the Third, Fourth, Fifth, Sixth, Twelfth and Thirteenth Respondents, in respect of whom there is no evidence of prior knowledge of the right of pre-emption or the alleged irregular rezoning and sub­division of the property.

Validity of approval in terms of slO (3) of Act

[31] Mr Van Rooyen submitted that, in the event, if the Applicant is able to establish at a trial or in an application in due course that the transfer of the property to the First Respondent was a nullity by reason of non­compliance with the Act, then the subsequent sales and transfers of the

various portions to the other Respondents would similarly be null and void and liable to be set aside. In such an event, he submitted, the Applicant would only be required to establish knowledge of the right of pre-emption on the part of the First Respondent when the initial transfer of property took place and this would entitled it to claim specific performance. [32] He submitted further that even those Respondents who have been bona fide have no absolute defence to a claim for the setting aside of a transfer which was preceded by transaction which was a nullity. He referred in this regard to the matter Campbell v Botha and others [2008] ZASCA 126; 2009 (1) SA 238 (SCA) which dealt with the validity of a sale in execution of a property in pursuance of an invalid judgment. In that matter the judgment in pursuance of which the property was attached and sold in execution was against a minor unassisted by his guardian and was therefore void. At page 245 (paragraph 20 of the judgment) Streicher JA said the following: "As the property had not been attached in execution of a judgement the sale that was conducted was not a sale in execution of the judgment and was therefore not protected by s 70. Not having attached the property the sheriff had no authority to conduct a sale thereof and to transfer the property to the purchaser". [33] There is in my view substantial merit in Mr Van Rooyen's submission that the purported rezoning and subdivision of the property, purportedly in terms of the provisions of the Act, was null and void. [34] The purpose of the Act, as it was when the Sixteenth Respondents' approval was obtained, was clearly to facilitate the settlement of persons who have no land or have limited access to land, on land designated for this purpose by the Minister in terms of s. 2 of the Act. Mr Goosen was constrained to concede that the Act was clearly not meant for the purposes of upmarket commercial developments. He submitted however that the donation of portions of the land to some of the Respondents for settlement purposes entitled the First Respondent to apply to the Sixteenth Respondent for rezoning and subdivision in terms of the provisions of the Act. I do not agree with this submission. There are numerous indications in the Act that it was meant to facilitate the settlement or securing of tenure right of deserving individuals. Section 10 (2) of the Act, by way of example, provides that the Minister may, from money appropriated by Parliament for this purpose, grant an advance or subsidy to persons who: "(a) ... who have no land or who have limited access to land; and who wish to ... gain access to land or to additional land; (b) ... wish to secure or upgrade the conditions of tenure under which they live or who wish to develop the land with the consent of the owner; (c) ... who have been disposed of land or of right in land but who do not have a right to restitution in terms of the restitution of lands rights Act, 1994 (Act no 22 of 1994)". [35] Section 10 (3), (which is the section in terms of which the Sixteenth Respondent purportedly approved the development) provides as follows: "The law governing the subdivision of agricultural land and the establishment of townships shall not apply in respect of land referred to in subsection (1) unless the Minister directs otherwise."

various portions to the other Respondents would similarly be null and void and liable to be set aside. In such an event, he submitted, the Applicant would only be required to establish knowledge of the right of pre-emption on the part of the First Respondent when the initial transfer of property took place and this would entitled it to claim specific performance.

[32] He submitted further that even those Respondents who have been bona fide have no absolute defence to a claim for the setting aside of a transfer which was preceded by transaction which was a nullity. He referred in this regard to the matter Campbell v Botha and others [2008] ZASCA 126; 2009 (1) SA 238 (SCA) which dealt with the validity of a sale in execution of a property in pursuance of an invalid judgment. In that matter the judgment in pursuance of which the property was attached and sold in execution was against a minor unassisted by his guardian and was therefore void. At page 245 (paragraph 20 of the judgment) Streicher

JA said the following:

"As the property had not been attached in execution of a judgement the sale that was conducted was not a sale in execution of the judgment and was therefore not protected by s 70. Not having attached the property the sheriff had no authority to conduct a sale thereof and to transfer the property to the purchaser".

[33] There is in my view substantial merit in Mr Van Rooyen's submission that the purported rezoning and subdivision of the property, purportedly in terms of the provisions of the Act, was null and void.

[34] The purpose of the Act, as it was when the Sixteenth Respondents' approval was obtained, was clearly to facilitate the settlement of persons who have no land or have limited access to land, on land designated for this purpose by the Minister in terms of s. 2 of the Act. Mr Goosen was constrained to concede that the Act was clearly not meant for the purposes of upmarket commercial developments. He submitted however that the donation of portions of the land to some of the Respondents for settlement purposes entitled the First Respondent to apply to the Sixteenth Respondent for rezoning and subdivision in terms of the provisions of the Act. I do not agree with this submission. There are numerous indications in the Act that it was meant to facilitate the settlement or securing of tenure right of deserving individuals. Section 10 (2) of the Act, by way of example, provides that the Minister may, from money appropriated by Parliament for this purpose, grant an advance or subsidy to persons who:

"(a) ... who have no land or who have limited access to land; and who wish to ... gain access to land or to additional land;

(b) ... wish to secure or upgrade the conditions of tenure under which they live or who wish to develop the land with the consent of the owner;

(c) ... who have been disposed of land or of right in land but who do not have a right to restitution in terms of the restitution of lands rights Act, 1994 (Act no 22 of 1994)".

[35] Section 10 (3), (which is the section in terms of which the Sixteenth Respondent purportedly approved the development) provides as follows:

"The law governing the subdivision of agricultural land and the establishment of townships shall not apply in respect of land referred to in subsection (1) unless the Minister directs otherwise."

It is not dear on what basis the Sixteenth Respondent purported to grant approval for the rezoning and sub-division of the property in terms of this section. There is certainly in my view nothing in this section, or for that matter elsewhere in the Act, any provision which purports to empower the Sixteenth Respondent to approve the rezoning and sub-division of agricultural land other

than that designated by the Minister in terms of s 2. [36] In the event it appears that the First and Sixteenth Respondents did not follow the procedures prescribed by the Act. In order for land earmarked for development in terms of the Act to be exempted from the provisions of laws governing the subdivision of agricultural land and establishment of townships, the Minister must first designate the land for purposes of settlement in terms of s 2. In terms of that section there are three classes of land that may be so designated, namely: (a) state land which is controlled by the Minister and made available by him or her for those purposes; (b) land which is purchased or acquired by the Minister for the purposes of settlement made available by him or her for those purposes; (c) any land which has been made available for the purposes of settlement by the owner thereof. [37] In terms of s 2 (2) the Minister must give notice in the gazette of any land so designated. In terms of s 2 (3) the Minister is enjoined to first cause a notice to be published in one newspaper circulating in the district in which the designated land is situated, calling upon interested parties to submit representations in writing within a period not shorter than 21 days following the day in which the notice appeared in the newspapers. It is only where no substantial change in land use is likely to occur as a result of the proposed settlement that the Minister may direct that no such publication shall be necessary. S. 3 (2) provides that the Minister shall not designate any land before he or she has considered all the representations received by virtue of s 3 (1). [38] It is common cause that no such designation has been made by the Minister nor has any notice been published in terms of s 3. In fact it appears quite likely that the Minister may well not even have been aware of the rezoning and subdivision of the land. [39] The designation of land in terms of the Act has far reaching consequences. For example the Subdivision of Agricultural Land Act, No 70 of 1970 (s 3 thereof) prohibits the rezoning, subdivision and sale of any portion of agricultural land unless certain conditions stipulated in the act have been complied with. The provisions of this act and other numerous laws relating to land use and planning would, by virtue of such designation, not be applicable to the designated land. It is for this reason that the

Legislature has deemed it necessary to enjoin the Minister to invite representations regarding the proposed designation. It is

conceivable that the owners of adjoining properties would be affected by such designation and consequent rezoning, hence the need for the publication and the opportunity for them to make representations in this regard to the Minister. [40] It is common cause that these procedures were not followed. This is in my view a fundamental irregularity which may well render the whole process a nullity. I am therefore of the view that the Applicant has made out a strong prima facie case in this regard and on the probabilities should successfully challenge the aforesaid decision of the Sixteenth Respondent at a trial or in application proceedings in due course. [41] Mr Goosen also raised the issue of prescription for the first time in reply to a further note submitted by the Applicant. He submitted that the Applicant became aware of all the facts on which its claim in relation to the right of pre-emption would be based during February 2008. These were allegedly disclosed to the Applicant's representatives, Moolman and Johnson, during a meeting with the Fifteenth Respondent. I am however of the view that this issue has not been sufficiently ventilated in the papers before me to enable me to make any meaningful assessment regarding the merits of this argument. On the Applicant's version it appears that it became aware of the relevant facts only during January 2009 when it commenced investigations. I am therefore of the view that the Respondents cannot rely on this argument to oppose the interim relief. [42] Mr Goosen has also argued that the Applicant has unreasonably delayed in bringing these proceedings. He submitted that as early as the 18th of May 2009 the Applicant, being well aware that the property had been sold to the First Respondent and that the latter had undertaken a significant development on the property, threatened to bring an urgent application for interim relief pending the institution of further review proceedings. The applicant however did not launch the threatened urgent proceedings and only made a further demand to the first respondent after the elapse of almost a year. It was only at that stage that reliance was placed on the existence of the right of pre-emption. The application was only brought thereafter. The explanation proffered by the Applicant for the delay was that it required time to ascertain how the authorisation had been obtained, to gather information, identify potentially interested parties and to obtain legal advice regarding further action. [43] Mr Goosen submitted that the result of the Applicant's unreasonable delay has been that the Respondents have been allowed to continue for almost five years to act in accordance with the approvals obtained from the Sixteenth and Seventeenth Respondents and have invested substantial amounts of money to procure the development of the property. While Mr Goosen stopped short of requesting this court to decide the issue as to whether or not a review court may decide in due course not to review the alleged administrative act on the basis of the undue delay, he submitted that because the Applicant had delayed unduly in bringing these proceedings the court should not grant the interim relief. In Associated Institutions Pension Fund and others v Van Zyl and others 2005 (2) SA 302 SCA the respondent had instituted review proceedings nearly four years after the impugned administrative decision was taken. Brandt JA held that: "[46] ... It is a longstanding rule that courts have the power as part of their inherent jurisdiction to regulate their own proceedings, to refuse a review application if the aggrieved party had been guilty of unreasonable delay in initiating the proceedings. The effect is that, in a sense, delay would 'validate' the invalid administrative action (see eg Oudekraal Estates (Pty) Ltd v City of Cape Town and Others [2004] (6) SA 222 (SCA) [2004] 3 All SA 1 at para [27]. The raison d'etre of the rule is said to be twofold. First, the failure to bring review within a reasonable time may cause prejudice to the respondent.

Secondly, there is a public interest element in the finality of the administrative decisions and the exercise of administrative

functions (see eg Woigroeiers Afslaer (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41). [47] The scope and content of the rule has been the subject of investigation in two decisions of this Court. They are the Woigroeiers case and Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en n Ander 1986 (2) SA 57 (A). As appears from these two cases and the numerous decisions in which they have been followed, application of the rule required consideration of two questions: (a) Was there an unreasonable delay? (b) If so, should the delay in all the circumstances be condoned? (See Woigroeiers at 39C-D). [48] The reasonableness or unreasonableness of delay is entirely dependent on the facts and circumstances of any particular case (see eg Setsokosane at 86G). The investigation into the reasonableness of the delay has nothing to do with the Court's discretion. It is an investigation into the facts of the matter in order to determine whether, in all the

circumstances of that case, the delay was reasonable. Though this question does imply a value judgment it is not to be equated with the judicial discretion involved in the next question, if it arises, namely, whether a delay which has been found to be unreasonable, should be condoned (see Setsokosane at 86E-f)" [44] The reviewing court will therefore have to determine firstly whether there has been an unreasonable delay in instituting the proceedings and if so, whether in the exercise of the courts' discretion the court should be inclined to condone the delay. See: Oudekraal Estate (Pty) Ltd v The

It is not dear on what basis the Sixteenth Respondent purported to grant approval for the rezoning and sub-division of the property in terms of this section. There is certainly in my view nothing in this section, or for that matter elsewhere in the Act, any provision which purports to empower the Sixteenth Respondent to approve the rezoning and sub-division of agricultural land other

than that designated by the Minister in terms of s 2.

[36] In the event it appears that the First and Sixteenth Respondents did not follow the procedures prescribed by the Act. In order for land earmarked for development in terms of the Act to be exempted from the provisions of laws governing the subdivision of agricultural land and establishment of townships, the Minister must first designate the land for purposes of settlement in terms of s 2. In terms of that section there are three classes of land that may be so designated, namely:

(a) state land which is controlled by the Minister and made available by him or her for those purposes;

(b) land which is purchased or acquired by the Minister for the purposes of settlement made available by him or her for those purposes;

(c) any land which has been made available for the purposes of settlement by the owner thereof.

[37] In terms of s 2 (2) the Minister must give notice in the gazette of any land so designated. In terms of s 2 (3) the Minister is enjoined to first cause a notice to be published in one newspaper circulating in the district in which the designated land is situated, calling upon interested parties to submit representations in writing within a period not shorter than 21 days following the day in which the notice appeared in the newspapers. It is only where no substantial change in land use is likely to occur as a result of the proposed settlement that the Minister may direct that no such publication shall be necessary. S. 3 (2) provides that the Minister shall not designate any land before he or she has considered all the representations received by virtue of s 3 (1).

[38] It is common cause that no such designation has been made by the Minister nor has any notice been published in terms of s 3. In fact it appears quite likely that the Minister may well not even have been aware of the rezoning and subdivision of the land.

[39] The designation of land in terms of the Act has far reaching consequences. For example the Subdivision of Agricultural Land Act, No 70 of 1970 (s 3 thereof) prohibits the rezoning, subdivision and sale of any portion of agricultural land unless certain conditions stipulated in the act have been complied with. The provisions of this act and other numerous laws relating to land use and planning would, by virtue of such designation, not be applicable to the designated land. It is for this reason that the

Legislature has deemed it necessary to enjoin the Minister to invite representations regarding the proposed designation. It is

conceivable that the owners of adjoining properties would be affected by such designation and consequent rezoning, hence the need for the publication and the opportunity for them to make representations in this regard to the Minister.

[40] It is common cause that these procedures were not followed. This is in my view a fundamental irregularity which may well render the whole process a nullity. I am therefore of the view that the Applicant has made out a strong prima facie case in this regard and on the probabilities should successfully challenge the aforesaid decision of the Sixteenth Respondent at a trial or in application proceedings in due course.

[41] Mr Goosen also raised the issue of prescription for the first time in reply to a further note submitted by the Applicant. He submitted that the Applicant became aware of all the facts on which its claim in relation to the right of pre-emption would be based during February 2008. These were allegedly disclosed to the Applicant's representatives, Moolman and Johnson, during a meeting with the Fifteenth Respondent. I am however of the view that this issue has not been sufficiently ventilated in the papers before me to enable me to make any meaningful assessment regarding the merits of this argument. On the Applicant's version it appears that it became aware of the relevant facts only during January 2009 when it commenced investigations. I am therefore of the view that the Respondents cannot rely on this argument to oppose the interim relief.

[42] Mr Goosen has also argued that the Applicant has unreasonably delayed in bringing these proceedings. He submitted that as early as the 18th of May 2009 the Applicant, being well aware that the property had been sold to the First Respondent and that the latter had undertaken a significant development on the property, threatened to bring an urgent application for interim relief pending the institution of further review proceedings. The applicant however did not launch the threatened urgent proceedings and only made a further demand to the first respondent after the elapse of almost a year. It was only at that stage that reliance was placed on the existence of the right of pre-emption. The application was only brought thereafter. The explanation proffered by the Applicant for the delay was that it required time to ascertain how the authorisation had been obtained, to gather information, identify potentially interested parties and to obtain legal advice regarding further action.

[43] Mr Goosen submitted that the result of the Applicant's unreasonable delay has been that the Respondents have been allowed to continue for almost five years to act in accordance with the approvals obtained from the Sixteenth and Seventeenth Respondents and have invested substantial amounts of money to procure the development of the property. While Mr Goosen stopped short of requesting this court to decide the issue as to whether or not a review court may decide in due course not to review the alleged administrative act on the basis of the undue delay, he submitted that because the Applicant had delayed unduly

in bringing these proceedings the court should not grant the interim relief.

In Associated Institutions Pension Fund and others v Van Zyl and

others 2005 (2) SA 302 SCA the respondent had instituted review

proceedings nearly four years after the impugned administrative decision

was taken. Brandt JA held that:

"[46] ... It is a longstanding rule that courts have the power as part of their inherent jurisdiction to regulate their own proceedings, to refuse a review application if the aggrieved party had been guilty of unreasonable delay in initiating the proceedings. The effect is that, in a sense, delay would 'validate' the invalid administrative action (see eg Oudekraal Estates (Pty) Ltd v City of Cape Town and Others [2004] (6) SA 222 (SCA) [2004] 3 All SA 1 at para [27]. The raison d'etre of the rule is said to be twofold. First, the failure to bring review within a reasonable time may cause prejudice to the respondent.

Secondly, there is a public interest element in the finality of the administrative decisions and the exercise of administrative

functions (see eg Woigroeiers Afslaer (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41).

[47] The scope and content of the rule has been the subject of investigation in two decisions of this Court. They are the Woigroeiers case and Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en n Ander 1986 (2) SA 57 (A). As appears from these two cases and the numerous decisions in which they have been followed, application of the rule required consideration of two questions:

(a) Was there an unreasonable delay?

(b) If so, should the delay in all the circumstances be condoned? (See Woigroeiers at 39C-D).

[48] The reasonableness or unreasonableness of delay is entirely dependent on the facts and circumstances of any particular case (see eg Setsokosane at 86G). The investigation into the reasonableness of the delay has nothing to do with the Court's discretion. It is an investigation into the facts of the matter in order to determine whether, in all the

circumstances of that case, the delay was reasonable. Though this question does imply a value judgment it is not to be equated with the judicial discretion involved in the next question, if it arises, namely, whether a delay which has been found to be unreasonable, should be condoned (see Setsokosane at 86E-f)"

[44] The reviewing court will therefore have to determine firstly whether there has been an unreasonable delay in instituting the proceedings and if so, whether in the exercise of the courts' discretion the court should be

inclined to condone the delay. See: Oudekraal Estate (Pty) Ltd v The

City of Cape Town 2010 (1) SA 333 (SCA). In that matter it was held that: "In reviewing and considering whether to set aside an administrative decision, Courts are imbued with a discretion, in the exercise of which relief may be withheld on the basis of an undue and unreasonable delay causing prejudice to other parties, notwithstanding substantive grounds being present for the setting aside of the decision. The application of the delay rule would in a sense Validate' a nullity. This rule evolved because, prior to the Promotion of Administrative Justice Act 3 of 2000 (PAJA), no statutory prescribed time limit existed within which review proceedings had to be brought. The rationale was an acknowledgment of prejudice interested parties that might flow from an unreasonable delay as well as the public interest and the finality of administrative decisions and acts." Navsa JA agreed that the decision should be driven by the principle of legality even though the degree of delay was "unprecedented", [paragraph 81, page 354 of the judgement]. [45] The Appeal Court found in that matter that even though the applicant did delay unreasonably in applying for the review of the administrative decision, it should exercise it discretion to condone the delay on the basis that invalid decisions should not stand and that the principle of legality and the interest of justice be advanced. In my view, and on the basis of my previous

findings regarding the validity of the process undertaken by the First Respondent and which resulted in the purported approval in terms of the Act by the Sixteenth Respondent, the review court, faced with an argument of undue delay on the part of the Applicant,

will in all probability be inclined to approach the matter on this basis. [46] I am therefore of the view that the undue delay argument cannot avail the First, Second and Seventh Respondents at this stage of the proceedings. Case against Twelfth and Thirteenth Respondents [47] Mr Frost, who appeared on behalf of the Twelfth and Thirteenth Respondents, submitted that these Respondents are on an entirely different footing to the other Respondents. These respondents have been cited in their capacities as trustees of the Marize Trust which owns Portion 19 of the property. The Twelfth and Thirteenth Respondents averred that they have no knowledge of the right of pre-emption and are therefore bona fide title holders. Mr Frost submitted that, on the basis of the authorities which I have previously referred to in this regard, it will not be possible for the Applicant to pursue its right of pre-emption vis-a-vis these respondents. [48] He argued further that while the Applicant has furnished an undertaking to indemnify the Twelfth and Thirteenth Respondents against any losses which they cannot recover from First, Second, Fourteenth and Fifteenth Respondents in the event of them being able to show that they were bona fide unaware of the irregular manner in which the subdivisions took place, the Applicant has not made any allegations that the Twelfth or Thirteenth Respondents were either aware of the pre-existing right of pre­emption or the alleged irregular manner in which the subdivision of the property took place. For the reasons which I have stated earlier the Third to Sixth Respondents are in the same position. [49] I am of the view that for these reasons, the Applicant has not been able to establish entitlement for interim relief against these Respondents. These Respondents have averred that they will suffer serious financial harm if an interim order is granted against them. In the event, if the Applicant is able to establish in due course that the rezoning, subdivision and sale of individual erven to third parties were null and void, any subsequent sale by these Respondents to third parties will similarly be null and void. I am therefore of the view that the balance of convenience in this regard favours the Third, Fourth, Fifth, Sixth, Thirteenth

and Fourteenth Respondents. The Legal position of Eighth, Ninth, Tenth and Eleventh Respondents [50] The Applicant's attitude regarding the rezoning and disposal of portions 58 and 59 is in my view also not of any legal consequence. If the rezoning of the property is declared to be invalid because of non­compliance with peremptory statutory procedures, the subdivision and disposal of the aforementioned portions will also be null and void. It is understandable that the Applicant would be sympathetic to the plight of these Respondents who appear to qualify for assistance in terms of the Act. It can however not have its cake and eat it. If its argument is upheld by the review court in due course, the entire development will be visited with invalidity. The balance of convenience [51] Regarding the issue of the balance of convenience I am of the view that it favours the Applicant. The Applicant has furnished an undertaking to the Nineteenth and Twentieth Respondents, being the financial institutions who are bondholders and the other Respondents who will be able to prove in due course that they were bona fide unaware of the alleged irregular manner in which the rezoning and sale of the sub-divided units took place, to indemnify them from any losses they may not be able to recover from the First, Second, Fourteenth and Fifteenth Respondents. The potential prejudice to the Applicant if an undesirable and illegal development is allowed to continue along the boundaries of a national park far outweighs the potential financial losses which the Respondents may suffer if the interim relief is granted. I am in the event of the view that the Applicant has proved a prima facie right and that upon a consideration of all the facts, the Applicant should obtain final relief. For these reasons I am of the view that less emphasis should therefore be placed on the issue of the balance of convenience. The Applicant also clearly has no alternative remedy. [52] Mr van Rooyen has submitted that costs should follow the result. I am however of the view that it is appropriate for the issue of costs in respect of the application against the First, Second and Seventh Respondents to stand over for decision by the court which will consider the review proceedings. If the Applicant fails to institute the action or application proceedings for final substantive relief within the period of thirty days, the interim order will in the event fall away and these Respondents will be entitled to their costs. Order [53] In the result I make the following order: 1. The First, Second and Seventh Respondents are hereby interdicted and restrained from disposing of, transferring, encumbering or effecting any improvements or developments on any properties constituting subdivisions or portions of the remainder of farm Vista 367, Alexandria, Eastern Cape pending the outcome of an application or action to be instituted by the Applicant within a

period of thirty (30) days of this order to review and set aside the rezoning, subdivision and transfer of the subdivisions and/or

portions of the aforesaid property and for an order that the remainder of farm Vista 367, Alexandria, Eastern Cape be transferred

to the Applicant at a purchase consideration of R3 million rand.

City of Cape Town 2010 (1) SA 333 (SCA). In that matter it was held that:

"In reviewing and considering whether to set aside an administrative decision, Courts are imbued with a discretion, in the exercise of which relief may be withheld on the basis of an undue and unreasonable delay causing prejudice to other parties, notwithstanding substantive grounds being present for the setting aside of the decision. The application of the delay rule would in a sense Validate' a nullity. This rule evolved because, prior to the Promotion of Administrative Justice Act 3 of 2000 (PAJA), no statutory prescribed time limit existed within which review proceedings had to be brought. The rationale was an acknowledgment of prejudice interested parties that might flow from an unreasonable delay as well as the public interest and the finality of administrative decisions and acts."

Navsa JA agreed that the decision should be driven by the principle of legality even though the degree of delay was "unprecedented", [paragraph 81, page 354 of the judgement].

[45] The Appeal Court found in that matter that even though the applicant did delay unreasonably in applying for the review of the administrative decision, it should exercise it discretion to condone the delay on the basis that invalid decisions should not stand and that the principle of legality and the interest of justice be advanced. In my view, and on the basis of my previous

findings regarding the validity of the process undertaken by the First Respondent and which resulted in the purported approval in terms of the Act by the Sixteenth Respondent, the review court, faced with an argument of undue delay on the part of the Applicant,

will in all probability be inclined to approach the matter on this basis.

[46] I am therefore of the view that the undue delay argument cannot avail the First, Second and Seventh Respondents at this stage of the proceedings.

Case against Twelfth and Thirteenth Respondents

[47] Mr Frost, who appeared on behalf of the Twelfth and Thirteenth Respondents, submitted that these Respondents are on an entirely different footing to the other Respondents. These respondents have been cited in their capacities as trustees of the Marize Trust which owns Portion 19 of the property. The Twelfth and Thirteenth Respondents averred that they have no knowledge of the right of pre-emption and are therefore bona fide title holders. Mr Frost submitted that, on the basis of the authorities which I have previously referred to in this regard, it will not be possible for the Applicant to pursue its right of pre-emption vis-a-vis these respondents.

[48] He argued further that while the Applicant has furnished an undertaking to indemnify the Twelfth and Thirteenth Respondents against any losses which they cannot recover from First, Second, Fourteenth and Fifteenth Respondents in the event of them being able to show that they were bona fide unaware of the irregular manner in which the subdivisions took place, the Applicant has not made any allegations that the Twelfth or Thirteenth Respondents were either aware of the pre-existing right of pre­emption or the alleged irregular manner in which the subdivision of the property took place. For the reasons which I have stated earlier the Third to Sixth Respondents are in the same position.

[49] I am of the view that for these reasons, the Applicant has not been able to establish entitlement for interim relief against these Respondents. These Respondents have averred that they will suffer serious financial harm if an interim order is granted against them. In the event, if the Applicant is able to establish in due course that the rezoning, subdivision and sale of individual erven to third parties were null and void, any subsequent sale by these Respondents to third parties will similarly be null and void. I am therefore of the view that the balance of convenience in this regard favours the Third, Fourth, Fifth, Sixth, Thirteenth

and Fourteenth Respondents.

The Legal position of Eighth, Ninth, Tenth and Eleventh Respondents

[50] The Applicant's attitude regarding the rezoning and disposal of portions 58 and 59 is in my view also not of any legal consequence. If the rezoning of the property is declared to be invalid because of non­compliance with peremptory statutory procedures, the subdivision and disposal of the aforementioned portions will also be null and void. It is understandable that the Applicant would be sympathetic to the plight of these Respondents who appear to qualify for assistance in terms of the Act. It can however not have its cake and eat it. If its argument is upheld by the review court in due course, the entire development will be visited with invalidity.

The balance of convenience

[51] Regarding the issue of the balance of convenience I am of the view that it favours the Applicant. The Applicant has furnished an undertaking to the Nineteenth and Twentieth Respondents, being the financial institutions who are bondholders and the other Respondents who will be able to prove in due course that they were bona fide unaware of the alleged irregular manner in which the rezoning and sale of the sub-divided units took place, to indemnify them from any losses they may not be able to recover from the First, Second, Fourteenth and Fifteenth Respondents. The potential prejudice to the Applicant if an undesirable and illegal development is allowed to continue along the boundaries of a national park far outweighs the potential financial losses which the Respondents may suffer if the interim relief is granted. I am in the event of the view that the Applicant has proved a prima facie right and that upon a consideration of all the facts, the Applicant should obtain final relief. For these reasons I am of the view that less emphasis should therefore be placed on the issue of the balance of convenience. The Applicant also clearly has no alternative remedy.

[52] Mr van Rooyen has submitted that costs should follow the result. I am however of the view that it is appropriate for the issue of costs in respect of the application against the First, Second and Seventh Respondents to stand over for decision by the court which will consider the review proceedings. If the Applicant fails to institute the action or application proceedings for final substantive relief within the period of thirty days, the interim order will in the event fall away and these Respondents will be entitled to their costs.

Order

[53] In the result I make the following order:

1. The First, Second and Seventh Respondents are hereby interdicted and restrained from disposing of, transferring, encumbering or effecting any improvements or developments on any properties constituting subdivisions or portions of the remainder of farm Vista 367, Alexandria, Eastern Cape pending the outcome of an application or action to be instituted by the Applicant within a

period of thirty (30) days of this order to review and set aside the rezoning, subdivision and transfer of the subdivisions and/or

portions of the aforesaid property and for an order that the remainder of farm Vista 367, Alexandria, Eastern Cape be transferred

to the Applicant at a purchase consideration of R3 million rand.

2. The application against the Third, Fourth, Fifth, Sixth, Twelfth and Thirteenth Respondents is dismissed with costs. 3. The question of costs in respect of the application against the First, Second and Seventh Respondents is reserved for decision by the court which will consider the final relief. J.E. SMITH JUDGE OF THE HIGH COURT Counsel for the Applicant: Advocate Van Rooyen SC Attorney for the Applicant: Whitesides Attorneys 53 African Street GRAHAMSTOWN 6140 Counsel for the 1st - 7th and 15th - 16 Respondents: Advocate Goosen Attorney for the Respondent: Neville Borman & Botha 22 Hill Street GRAHAMSTOWN 6140 (Mr. J. Power/Rene Tomilson Counsel for the 12th & 13th Respondents: Advocate Frost Date of hearing: 29 July 2011 Date Delivered: 25 August 2011

2. The application against the Third, Fourth, Fifth, Sixth, Twelfth and Thirteenth Respondents is dismissed with costs.

3. The question of costs in respect of the application against the First, Second and Seventh Respondents is reserved for decision by the court which will consider the final relief.

J.E. SMITH

JUDGE OF THE HIGH COURT

Counsel for the Applicant: Advocate Van Rooyen SC

Attorney for the Applicant: Whitesides Attorneys

53 African Street

GRAHAMSTOWN

6140

Counsel for the 1st - 7th and 15th - 16

Respondents: Advocate Goosen

Attorney for the Respondent: Neville Borman & Botha

22 Hill Street

GRAHAMSTOWN 6140

(Mr. J. Power/Rene Tomilson

Counsel for the 12th & 13th Respondents: Advocate Frost

Date of hearing: 29 July 2011

Date Delivered: 25 August 2011