Victor and Another v Wonderhoek Farms (Pty) Ltd (A114/2021) [2021] ZAFSHC 322 (3 December 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: A114/2021

In the matter between:

MARIA

MAGRIETHA CATHARINA VICTOR

1st Appellant

VAUGHN

VICTOR

2nd Appellant

and

WONDERHOEK FARMS (PTY)

LTD

Respondent

JUDGMENT BY: MHLAMBI J, et DE KOCK, AJ

HEARD ON:

22 NOVEMBER 2021

DELIEVERED ON: This judgment was handed down electronically by circulation to the parties’ representatives by email, and released to SAFLII. The date and time for hand-down is deemed to be 16h00 on 03 December 2021

MHLAMBI, J

Introduction

[1] This an application for leave to appeal against the judgment of the learned magistrate EM Sebe delivered on 12 March 2021 in which the following order was made:

“1. The application to strike out paragraphs 8 to 29 and 41 are dismissed with costs on attorney and own client scale.

2. The application for eviction succeeds with costs on attorney and client scale.

3. The first and second respondents or any person occupying farm Aanvang 1 farm, situated in the district of Wepener, Free State through them vacate the said farm on or before 11 June 2021. Should the first and second respondent or any person occupy through not have vacated the farm sheriff assisted by the members of SAPS are directed to carry out the execution on 15 June 2021.”

[2] The grounds of appeal are stated as follows in the notice of appeal:

“1. In paragraph 17 of his judgment the Honourable magistrate Sebe found that on the papers the property in question cannot be associated with any other person or entity but the respondent on Wonderhoek Farms (Pty) Ltd, as set out in the title deed dated 10 September 2020.

2. The Honourable magistrate Sebe found that the respondent has therefore demonstrated the requisite locus standi as envisaged in section 4(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Property Act, Act 19 of 1998 (“PIE”) to bring such an application.

3. The Honourable magistrate Sebe with respect erred in concluding that the respondent has the necessary locus standi to bring this application under the circumstance where it cannot be disputed that the issue of the settlement agreement and the subsequent transfer of the properties to the respondent on 10 September 2020 is sub iudicae in the High Court under case number 5049/2014.

4. The Honourable magistrate Sebe found in paragraph 18 of his judgment that his finding of locus standi is further supported by the settlement agreement which was made an order of court in February 2020.

5. The Honourable magistrate further found that although the appellants have made attempts to have the settlement agreement set aside, the appellants have failed on more than one occasion and accordingly, the settlement agreement stands as is.

6. The Honourable magistrate Sebe with respect erred in find that the appellants have been unsuccessful on more than one occasion to have the settlement agreement set aside.

7. The Honourable magistrate Sebe should have found that the application for the setting aside of the settlement agreement is still sub iudicae, since part B of the application under case number 5049/2014 in the Free State High Court, has never been adjudicated upon and is still pending.

8. Premised on this incorrect factual finding the Honourable magistrate with respect erred in coming to the conclusion that the issue of ownership of the property has been finalised.

9. In paragraph 19 of his judgment the Honourable magistrate Sebe found that none of the allegations contained in paragraphs 8 to 29 and 41 of the affidavit is scandalous, vexatious, or irrelevant.

10. The Honourable magistrate Sebe should have found that the allegations regarding the judgment of Moeng, AJ under case number 1088/2014 is irrelevant for purposes of adjudicating the matter in so far as the opinion expressed by the Honourable Acting Justice Moeng constituted a prima facie view with regard with the transfer of the properties from the respondent to Vaughn Victor Ontwikkelingstrust 1 (“VVOT1”) and that this prima facie finding was not dispositive of the dispute of ownership of the property in question.

11. It is therefore submitted that the Honourable magistrate Sebe erred in making a final determination in respect of the eviction application under circumstances where the respondent’s locus standi has not been adjudicated upon the High Court.

12. The Honourable magistrate Sebe with respect erred in granting costs against the appellants on a scale as between attorney and client. The Honourable magistrate Sebe should have dismissed the application with costs in favour of the appellants.

13. Under these circumstances it is submitted that there are good prospects that another court would come to another finding in favour of the appellants.

14. Where for the appellants pray that the appeal be upheld with costs”.

[3] In summary, the essence of the grounds of appeal is that the respondent was not the owner of the property and did not have the necessary locus standi to institute the eviction proceedings against the appellants as envisaged in section 4(1) of the Pie Act. [1]

[4] Consequently, the appellants, in their individual capacities, sought to challenge the settlement agreement between the trustees of the VVOT1 and VVOT2 trusts and the respondent, which confirmed the transfer of the property to the respondent.

Brief Background

[5] During November 2014, the respondent instituted an action in this court under case number 5049/2014 against the first and second appellants together with other respondents, seeking an order declaring that it was the owner of certain 12 farms amongst which was Aanvang 1, and restoring its title to the said farms into the relevant registers of deeds as well as declaring the second respondent a delinquent director in terms of the Companies Act.[2] The respondent alleged that the second appellant had caused that the 12 Farms, which were owned by the respondent, were unlawfully transferred into the names of the Vaughn Victor 1 Ontwikkelingstrust (VVOT1) and the Vaughn Victor 2 Ontwikkelingstrust (VVOT2). These trusts were the appellants’ alter egos. Both appellants and their bookkeeper, a certain Mr Benjamin Petrus Vermeulen, were the trustees of these trusts of which the first and second appellants were the beneficiaries.

[6] The case was set down for trial but was postponed and the second appellant and his trusts were ordered to pay the wasted costs. On failing to pay the taxed costs, the second appellant was finally sequestrated on 6 September 2019. The two trusts, VVOT1 and VVOT2, were sequestrated during March and April 2018 at the instance of the First Rand Bank limited, and two trustees, Mr. Donovan Majiedt and Ms. Karen Fontein, were appointed. The two trustees concluded a written settlement agreement during February 2020 with the FirstRand Bank Limited for, inter alia, the restitution of the 12 farms to the respondent.

[7] The settlement agreement was made an order of the court on 20 February 2020 and settled the disputes under case number 5049/2014 between the applicant, First Rand Bank Limited, the trustees of the VVOT1 and VVOT2 trust, and the Registrar of Deeds. The properties were restored and retransferred to the applicant on 10 September 2020.

[8] During March 2020, the appellants launched an application under case number 5049/2019 seeking an order interdicting the respondent, Wonderhoek Farms, from, inter alia, implementing the settlement agreement. Part B sought the setting aside of the settlement agreement which was made a court order and a declaration that it was null and void ab initio. The relief sought in Part A by the second applicant to interdict the implementation of the settlement agreement, was dismissed due to his lack of locus standi. The first appellant’s application for interdicting the implementation of the settlement agreement was struck from the roll for the lack of urgency. A similar sentiment was echoed in the unreported case by Reinders, J,[3] in which both appellants unsuccessfully sought a declaratory and interim interdictory relief against the respondent. It was held that the second appellant did not have the necessary locus standi to seek interdictory relief without the assistance of the trustees of their insolvent estates. Unrehabilitated insolvents had no locus standi to approach the court for relief without the necessary assistance.[4]

The legal position

[9] Section 4(1) of the PIE Act provides that notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to the proceedings by an owner or person in charge of land for the eviction of an unlawful owner. An owner means the registered owner of the land.[5] A person in charge means a person who has or at the relevant time had the legal authority to give permission to a person to enter or reside upon the land in question.[6] An unlawful occupier is defined as a person who occupies land without the express or tacit consent of the owner or person in charge or any other right in law to occupy such land with certain exclusions.[7]

[10] It was submitted on behalf of the respondent that the best evidence of ownership of immovable property is the title deed to it and that a title deed conforms to the preconditions specified for a public document.[8] It was pointed out, and correctly so, that the registration of transfer of the property into the name of the respondent, accorded it the status of a lawful owner and that position remained legally effective and intact until properly set aside by a court. The proper functioning of a modern state would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question.[9] As the lawful owner, the respondent had the necessary locus to assert its right of possession in respect of the property and demand the eviction of the appellants and anyone holding occupation through them.[10] I agree with these submissions.

Findings

[11] I can therefore find no fault with the learned magistrate’s findings as set out in the first three grounds of appeal. The settlement agreement has as yet not been set aside. As at the time the learned magistrate gave judgment, the settlement agreement was in place as it was lawfully entered into by the representatives of the insolvent trusts. The wording in paragraph 18 of the judgment, is unfortunate but it does not detract from the fact that the settlement agreement is valid and lawful. The reality of the matter is that the current lawful owner of the property is the respondent, and that it shall remain the owner until such time that the converse is shown to be true. The issue of ownership and standing did not need to be finalised or adjudicated by the High Court, as ownership was a fact as at the time of the proceedings in the magistrate’s court.

[12] In view of the findings above, the success or not of the application to strike out does not seem to be relevant for the determination of this appeal. Even if the magistrate were wrong in finding that the impugned paragraphs did not contain matter that was scandalous, vexatious or irrelevant, this would not have affected the outcome of the case based on the proven facts and the legal pillars upon which the judgment was based. Therefore, it would be incorrect to suggest that the learned magistrate erred in dismissing the application to strike out with costs. The contents of the paragraph were a response and an elucidation of the points raised in the answering affidavit.

Conclusion

[13] The challenges raised by the appellants in contesting the eviction order are without substance as the respondent is the registered owner of the property. The appellants were not parties to the settlement agreement between the trustees of the trust and the respondent. Consequently, they have no standing to assail that settlement agreement. The appellants have failed to make a proper case and the appeal, therefore, stands to be dismissed with costs.

[14] I, therefore, make the following order.

Order:

1. The appeal is dismissed with costs, such costs to include;

1.1 Costs of counsel and costs so associated with the perusal of the application to reinstate the appeal;

1.2 The actual costs associated with the compilation of the appeal record.

J.J MHLAMBI, J

I concur,

D. DE KOCK, AJ

Counsel for the appellant: Adv. FG Janse Van Rensburg

Instructed by:

Willers Attorneys

21 Walter Sisulu Road

Park West

Bloemfontein

Counsel for the respondent: Adv. JW Kloek

Instructed by:

MDP Attorneys

4B Louw Wepener Street

Dan Pienaar

[1] Act 19/1998.

[2] 71/2008.

[3] Case number 2145/2021.

[4] Para 11 of the judgment.

[5] Section 1(ix) of the Act.

[6] Section 1(x) of the Act.

[7] Section 1(xi) of the Act.

[8] Goudini Chrome (Pty) Limited v MCC Contracts (Pty) Limited [1992] ZASCA 208; 1993 (1) SA 77 A.

[9] Oudekraal Estates (Pty) Limited v City of Cape Town and others 2004 (6) SA 222 SCA. See also Department of Transport and Others v Tasima(Pty) Ltd 2017(2) SA 622 CC.

[10] Singh v Maharaj and Others ZAKZDHC 25, para 16, judgment delivered on 18 August 2021.