Steytler N.O and Others v Strauss N.O and Others (2076/2020) [2021] ZAFSHC 343 (29 July 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 2076/2020

In the matter between:

GEORGE

FRANK STEYTLER N.O. First Plaintiff

ROSALIND

ANN STEYTLER N.O. Second Plaintiff

ANDRIES CHRISTOFFEL DU TOIT N.O. Third Plaintiff

and

LEON STRAUSS (SNR) N.O.

First Defendant

LEON STRAUSS (JNR) N.O.

Second Defendant

RIETTE ROUX N.O.

Third Defendant

LIONEL JOHN WALKER N.O

Fourth Defendant

GUSTAV

LE

GRANGE Fifth Defendant

JAC N COETZER INC.

Sixth Defendant

LEON

STRAUSS

Seventh Defendant

JUDGMENT BY: C REINDERS, J

HEARD ON: 28 MAY 2021

DELIVERED ON: 29 JULY 2021

[1] This is an opposed exception. The three plaintiffs in their representative capacities as trustees of the George Steytler Family Trust (collectively referred to as “the plaintiff”) issued a summons against seven defendants.

[2] The first to fourth defendants are the trustees of the Altevêr Trust.

[3] The fifth defendant is a director of the sixth defendant who in turn is an incorporated company who practises as attorneys in Hoopstad.

[4] The seventh defendant is a major male and farmer.

[5] In the summons the plaintiff avers that on 16 August 2017 at the office of the fifth defendant in Hoopstad, a written sale agreement was concluded in terms whereof Altevêr Trust sold its water right to the plaintiff for a consideration of R 6 697 500.00.

[6] The written sale agreement is annexed to the particulars of claim and certain provisions of the agreement repeated in the particulars of claim.

[7] Plaintiff avers that on 16 August 2017 it paid the purchase price and on the same date instructed the attorneys to apply to the Department of Water and Sanitation (the “Department”) for the transfer of the water right which application was unsuccessful for the reasons stated in the particulars. The plaintiff avers that the terms of the sale which provides for the sale of the water right from the Altevêr Trust to the plaintiff, possession of the water right, permanent transfer of the water right, the application for transfer of the water right and the rights of the parties in the event that the application for transfer of the water right is not successful, are in direct contrast with the provisions of the National Water Act 36 of 1998 (the “Act”) for the reasons pleaded in the particulars. Plaintiff therefore concludes that the sale agreement is ultra vires the Act, illegal and unlawful and seeks such an order together with repayment of the purchase price as restitution in integrum.

[8] The seventh defendant having bound himself as surety is jointly and severally liable according to the particulars of claim.

[9] For purposes hereof it is not necessary to state the alleged claims against the fifth and sixth defendants. It suffices to say that the trustees of the Altevêr Trust and the seventh defendant filed a notice in terms of Rule 23(1) whereafter the mentioned defendants filed an exception to the particulars of claim. The fifth and sixth defendants did not except.

[10] There are seven grounds of complaints against the particulars.

10.1 The first ground is that reference in the particulars of claim is made to the written sale agreement annexed to the summons not only as such, but also as a “draft agreement” which would become binding on the signing thereof, and a further “tacit mandate agreement” which was concluded upon signing of the written sale agreement (which tacit mandate agreement was concluded between plaintiff and sixth defendant). The defendants aver that they are embarrassed by the aforesaid causes of action founded on the same written document.

10.2 The second ground complains that the defendants do not know and cannot ascertain how the implied and/or tacit terms co-inside with the specific terms of clause 17.1 (which in essence constitutes a non-variation clause).

10.3 The third ground avers that the defendants do not know and cannot ascertain how the alleged relationship of trust between the fifth defendant and the Altevêr Trust relates to plaintiff’s cause of action.

10.4 The fourth ground pertains to the claim of damages which is directed at fifth defendant.

10.5 The fifth ground likewise is directed at plaintiff’s claim against fifth defendant.

10.6 The sixth ground, with reference to a copy of a letter from the Department annexed to the summons, complains that defendants do not know and cannot ascertain what cause of action the elaboration of the contents of the letter constitutes.

10.7 The last complaint pertains to the application to the Department which differs from the water right referred to in the written sale agreement and defendants complaining that they do not know and cannot ascertain why plaintiffs applied for transfer of a water right to a farm not mentioned in the sale agreement.

[11] As stated, first to fourth and seventh defendants, excepted to the summons. Fifth and six defendants did not. In my view the fourth and fifth grounds of exception have no merit as it concerns the claims against fifth and sixth defendants who did not object thereto, and in my view, rightly so. These objections in any event stand to be dismissed for the reasons stated hereunder.

[12] I have listened carefully to the arguments by Mr Van Rhyn SC who appeared before me on behalf of defendants. I considered his heads of argument and the authority referred to therein. I am however not convinced that the defendants are embarrassed, and in any event

embarrassed to such an extent that it cannot be reasonably expected of them to plead to the particulars. I say so because it is clear from the summons that plaintiff relies thereon that the agreement annexed to the particulars of claim is invalid, void and unenforceable and plaintiffs ultimately seeks an order to that effect. The reasons why the agreement is not capable of performance or ultra vires the Act or illegal and unlawful are stated in the summons. I have to agree with Mr Zietsman on behalf of the plaintiff that the particulars of claim in particular avers and claims an order not only declaring the sale agreement invalid, void and unenforceable, but repayment of the purchase price as restitutio in integrum.

[13] The defendants can in the circumstances plead to the particulars of claim and have no reason to complain that same in this respect is vague nor that they would be either embarrassed or prejudiced in doing so.

[14] The result is that the exception should be dismissed and costs to follow suit.

[15] Wherefore I make the following order:

The exception is dismissed with costs.

C. REINDERS, J

On behalf of the First to Fourth

and Seventh Defendants:

Adv AJR van Rhyn SC

Instructed by:

Lovius Block Attorneys

BLOEMFONTEIN

On behalf of the Plaintiffs: Adv PJJ Zietsman

Honey Attorneys