REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
JUDGMENT
Case No: I 1624/05
DATE: 06 FEBRUARY 2015
NOT REPORTABLE
In the matter:
PETRUS CORNELIUS JORDAAN
N.O..................................................Plaintiff
And
WILLEM MARTHINUS
SNYMAN.............................................First
Defendant
HUIBRECHT ELIZABETH
SNYMAN....................................Second
Defendant
Neutral citation: Jordaan NO v
Snyman (I 1624-2005) [2015] NAHCMD 17 (6 February 2015)
Coram: VAN NIEKERK J
Heard: 21 – 24 October 2008; 8
– 10 September 2014
Delivered: 6 February 2015
Flynote: Land – Sale –
Agricultural land – Agricultural (Commercial) Land Reform Act,
1195 (Act 6 of 1995) providing that agreement of alienation of
agricultural land of no force and effect until land first offered to
State and certificate of waiver furnished – In terms of section
17(3) this provision does not apply where land alienated in
administration of deceased estate – In casu option granted in
respect of farm – Option exercised after death of grantor but
before appointment of executor – Farm not offered to State and
no certificate of waiver furnished – Held that granting of
option not an alienation under Act – Upon exercise of option
agreement of alienation comes into being – When option
exercised no executor appointed and no deceased estate being
administered – In casu alienation not in administration of
deceased estate - Farm also not alienated by duly appointed executor
in order to cover debts of estate or to give effect to wishes of
testator as expressed in will - Had option grantor not died,
agreement of alienation would have been of no force and effect - Mere
fact of his death and timing of acceptance of option do not change
position - Mere coincidence with no legal significance as far as the
provisions of section 17 are concerned.
ORDER
1. The plaintiff’s claims are
upheld with costs, such costs to include the costs of one instructing
and one instructed counsel.
2. The costs of the application for
absolution are awarded in favour of the plaintiff, such costs to
include the costs of one instructing and one instructed counsel.
JUDGMENT
VAN NIEKERK, J:
[1] In this trial action an application
for absolution from the instance at the close of the plaintiff’s
case was refused on 28 August 2012. The trial continued during
September 2014 when the defendants each testified. It is convenient
to deal with some of the facts and the pleadings by quoting from the
previous judgment as follows:
“[1] During their life the now
late Albertus Jacobus Jordaan (hereinafter “Mr Jordaan”)
and the now late Susara Helena Jordaan (hereinafter “Mrs
Jordaan”) were married to each other in community of property.
During their marriage the farm Marwil No. 541, situated in the
Republic of Namibia, was registered in the name of Mr Jordaan in
1984. On 3 March 1993 Mr Jordaan and his wife signed a joint will in
terms of which they bequeathed the estate and the effects of the
first dying to the survivor. During early 2000, a second joint will
was prepared, but it was only Mr Jordaan who signed this will. Mrs
Jordaan passed away on 20 February 2000 before she could sign the
will.
[2] On 4 July 2000, before any executor
was appointed in the estate of the late Mrs Jordaan, Mr Jordaan and
the first defendant entered into a written lease agreement (“the
lease agreement”) in terms of which the former leased the farm
Marwil to the latter. The lease agreement also contained an option
clause in terms of which it was provided that “in the event of
the Lessee wanting to exercise this option to purchase the property,
he shall notify the Lessor in writing on or before 1 March 2003 of
his intention.”
[3] At a later stage Mr Jordaan caused
a codicil to be executed to the 2000 will in terms of which he
appointed Waldemar Strauss, an attorney practicing in the town of
Schweizer Reneke, South Africa, as executor of his estate with power
of assumption to appoint an agent in Namibia to assist him with the
liquidation of the estate in Namibia. Mr Strauss declined to accept
the appointment.
[4] On 20 February 2001 Mr Jordaan was
appointed as executor in the estate of the late Mrs Jordaan, as I
understand it, in South Africa.
[5] On 25 September 2002 Mr Jordaan
passed away and since then the rent for the farm Marwil was received
by Mr Strauss, the executor testamentary, although never appointed by
the Master.
[6] On 19 February 2003 the first
defendant telephoned Mr Strauss and informed him that he intended
exercising the option to purchase Marwil. A letter dated 17 February
2003 in which the first defendant gives notice that he intends
exercising the option was posted by registered post on 20 February
2003 from Potchefstroom, South Africa to Mr Strauss in Schweizer
Reneke. The letter was received at the post office of Schweizer
Reneke on 27 February 2003 and collected by Mr Strauss’ staff
on 4 March 2003.
[7] On 20 March 2003 the plaintiff was
appointed in South Africa as executor in the estate of his late
father, Mr Jordaan. On 3 August 2004 he was appointed as such in
Namibia. On the same date he was also appointed as executor in
Namibia of the estate of his late mother, Mrs Jordaan.
[8] On 25 July 2005 the plaintiff
instituted action against the defendants in his capacity as executor.
In his amended particulars of claim filed on 17 September 2007 he
sets out two claims. The first is a claim for ejection of the
defendants from the farm Marwil. In the second claim he pleads that
the defendants are “in unlawful possession and/or occupation”
of the farm Marwil since 1 March 2004; that despite demand the
defendants have failed to vacate or return the farm to the plaintiff;
that as a result the plaintiff has suffered damages in the amount of
N$240 480 being the fair and reasonable rental for the farm for the
period 1 March 2004 to 1 March 2007 and that he continues to suffer
damages in the amount of N$6 680 per month for the continued unlawful
occupation of the farm. He therefore claims the amount of N$240 280
plus interest thereon, as well as the monthly amount, plus interest,
for each month that the defendants continue their unlawful occupation
of the farm until the date of delivery of the property to the
plaintiff. “
[2] The defendants’ plea
essentially amounts thereto that their possession of the farm arises
by virtue of the lease agreement and by virtue thereof that the first
defendant duly exercised the option contained in clause 19 of the
agreement, but that, despite the exercise thereof, the plaintiff
“frustrates” transfer of the property to the defendants.
In the particulars of claim the plaintiff alleges that the defendants
are married in community of property. Although the first defendant
denies that the marriage is in community of property and the second
defendant denied that she is married at all, it became common cause
during the trial, or it is, at least, not disputed, that the
defendants are married out of community of property.
[3] The plaintiff filed a replication,
the relevant part of which reads as follows:
“2. Plaintiff pleads that:
2.2.1 The late SUSARAH HELENA JORDAAN
(“the first deceased”) died on 20 February 2000.
2.2.2 The first deceased was in life
married to ALBERTUS JACOBUS JOHANNES JORDAAN in community of property
and the said ALBERTUS JACOBUS JOHANNES JORDAAN died on 25 September
2002. (To the said ALBERTUS JACOBUS JOHANNES JORDAAN will herein
further be referred to as “the second deceased”.)
2.2.3 On the 4th July 2000 and at
Aranos the second deceased purported to enter into a lease agreement
with first defendant, a copy whereof is attached to the plea as
Annexure “A” (and to which purported lease agreement will
herein be referred to as “the purported lease agreement”),
the express terms whereof are:
2.2.3.1 The second deceased lets to the
first defendant certain portions of the farm Marwil, in the district
of Aranos, Namibia, being:
First year: 1 000 hectares
Second year: 2 000 hectares
Third year: 3 000 hectares
Fourth year: 4 008 hectares
2.2.3.2 The lease starts on the 1st
March 2000 and expires on the 28th February 2004.
2.2.3.3 The rental amount is N$20.00
plus General Sale Tax or other tax, if applicable, per hectare.
2.2.3.4 Rental is payable yearly in
arrears.
2.2.3.5 The second deceased chooses as
his domicilium c/o Waldemar Strauss Attorney, P O Box 368,
Schweizer-Reneke 2780 and the First Defendant chooses as domicilium
the farm Marwil, Aranos, Namibia.
2.2.3.6 The second deceased gives first
defendant an option to buy the farm Marwil (Herein further referred
to as “the said immovable property”) from the second
deceased at the expiry of the lease agreement at an amount of
N$200.00 per hectare. In the event of any taxes payable, first
defendant will be liable for such taxes.
2.2.3.7 The price for the said
immovable property is the sum of N$801 600.00 plus any taxes.
2.2.3.8 The full purchase price is
payable by first defendant to the second deceased at date of transfer
of the said immovable property.
2.2.3.9 In the event of first defendant
intending to exercise the option to buy the said immovable property,
first defendant will give written notice of his intention to do so on
or before the 1st March 2003.
2.2.4 Herein further the option
referred to here above will be referred to, for sake of brevity, as
“the purported option.”
2.2.5 On the 4th July 2000 no executor
of the estate of the first deceased had been appointed and only on
the 22nd February 2001 the second deceased was appointed as the
executor of the estate of the first deceased. A copy of the Letters
of Executorship is attached hereto as Annexure “PJ1”
2.2.6 When the second deceased
purported to enter into the purported lease agreement, the second
deceased had no authority to deal in any way with the assets of the
erstwhile joint estate of the first deceased and with the estate of
the second deceased.
2.2.7 No deceased estate may be
administered or disturbed in the absence of duly issued Letters of
Executorship to an executor.
2.2.8 In view of the facts pleaded
herein earlier, the second deceased was not entitled and could not
validly enter into the purported leased agreement.
2.2.9 In addition, the purported option
in law has to comply with the provision of Section 1 of the
Formalities in respect of Contracts of Sale of Land Act, No 71 of
1969.
2.2.10 As at the 4th July 2000 the
second deceased had no authority to an could not lawfully grant the
purported option in the absence of a duly appointed executor for the
estate of the first deceased and could not enter into the purported
lease agreement without consent thereto by the High Court.
2.2.11 No new written option, in
substation of the purported option, was granted by the second
deceased to first defendant after the appointment of the second
deceased as executor of the estate of the first deceased.
2.2.12 In the premises, the purported
option at all relevant times was invalid and of no force and effect.
2.2.13 In a letter dated the 17th
February 2003 first defendant purported to accept the purported
option, a copy of the purported acceptance is attached hereto as
Annexure “PJ2” and will be referred to as “the
purported acceptance”.
2.2.14 The purported acceptance is in
view of the facts pleaded above, invalid and of no force or effect.
2.2.15 In the alternative to paragraph
2.2.5 – 2.2.14 above and in the event of it being found that
the purported option was valid and of full force and effect (all
allegations which are still denied), plaintiff pleads that:
2.2.15.1 The purported option was not
brought to the notice of the duly appointed executor of the estate of
both first and second deceased, being plaintiff, timeously.
2.2.15.2 Plaintiff only received notice
of the purported acceptance of the purported option on or about the
4th March 2003 when plaintiff’s attorney at Schweizer-Reneke,
Republic of South Africa, Mr Waldemar Strauss, received the purported
acceptance.
2.2.15.3 In terms of clause 19 of the
purported lease agreement the period for acceptance of the option
expired on the 1st March 2003.
2.2.15.4 By the 4th March 2003 the
purported option had already expired and the purported acceptance is
accordingly of no force or effect.
2.2.15.5 In the premises first and
second defendants are in unlawful occupations of the farm Marwil
since the 1st March 2004.
2.2.16 In any event and in addition to
what has been pleaded in 2.2.5 to 2.2.15 above, plaintiff pleads
that:
2.2.16.1 By virtue of the provisions of
Section 17(2) of the Agricultural (Commercial) Land Reform Act, 1995
(Act 6 of 1995) (hereinafter “the Act), subject to subsection
(3), no agreement of alienation of agricultural land entered into by
the owner of such land after the date of commencement of Part III of
the Act shall be of any force and effect until the owner of such
land:
(a) Has first offered such land for
sale to the State; and
(b) has been furnished with a
certificate of waiver in respect of such land.
2.2.16.2 Part III of the aforesaid Act,
including in particular Section 17, come into force on 17 October
1996;
2.2.16.3 The purported lease agreement
in terms of which the purported option was granted was entered into
on 4 July 2000 after the coming into force of Section 17 of the Act.
2.2.16.4 As at 4 July 2000, when the
second deceased purported to enter into the lease agreement in
question and purportedly granted the option the second deceased
(totally apart from his lack of authority as pleaded above) had not
offered the land to the State, nor had he done so afterwards and no
certificate of waiver had been issued in respect of such land as
contemplated by Section 17(2) of the Act.
2.2.16.5 Furthermore, but virtue of the
second deceased’s lack of authority the second deceased in any
event could not, prior to his death have exercised any of the acts
provided for in Section 17(4) prior to his death;
2.2.16.6 The second deceased passed
away on the 25 September 2002.
2.2.16.7 In a letter dated 17 February
2003 (i.e. after the death of the second deceased) the first
defendant purported to accept the purported option.
2.2.16.8 The purported lease agreement
and purported option as well as the purported acceptance of such
purported option are, in view of the above provisions of no force and
effect.”
[4] The plaintiff testified and called
Mr Strauss as a witness. The defendants both testified as part of
their case. For reasons which should become apparent, I do not think
it is necessary to deal with their evidence, except in a few
instances, as the case is to be determined on a few common cause
facts and legal argument.
[5] It is common cause that the
plaintiff if the duly appointed executor on both the deceased estates
of the late Mr and Mrs Jordaan. The plaintiff’s claim is based
on the rei vindicatio. It is trite that the plaintiff bears the onus
to prove (i) ownership of the immovable property and (ii) that the
defendants are in possession of the property (Shinyenge v Hamunyela
2004 NR 1 (HC) at 3I-J; Shukifeni v Tow-in-Specialist CC 2012 (1) NR
219 (HC) at 224I-225E; Kalipi v Hochobeb and Another 2014 (1) NR 90
(HC) 96A-B). The second requirement is common cause. In the
absolution judgment I stated the following in regard to the first
requirement:
“[14] Counsel for both parties
spent some time on the issue of the juristic nature of a deceased
estate and on the issue of where the dominium in the estate resides
during the period immediately after the death of the testator and
before delivery or transfer to the heirs and legatees, and also on
the question in whom the dominium vests before an executor is
appointed. The consensus was that these matters are subject to much
uncertainty. I do not think that it is necessary to resolve this
issue in this case. It is clear to me that the plaintiff, by virtue
of his appointment as executor in the deceased estates of both Mr and
Mrs Jordaan, is, in principle, the person who has locus standi to
bring a vindicatory action in respect of any asset that forms part of
the estate but which is in the hands of, or may be owed by, third
parties. (Krige v Scoble 1912 TPD 814; Meyerowitz, The Law and
Practice of Administration of Estates and their Taxation, (2010 ed.)
§ 12.26).”
[6] The two requirements having been
met, the onus is on the defendants to prove their right of possession
of the property in order to ward off the vindication (Council of the
Municipality of Windhoek v Bruni N.O. and Others 2009 (1) NR 151 (HC)
164E-F;H-I; Shukifeni v Tow-in-Specialist CC, supra, 225E-G; Kalipi v
Hochobeb, supra, 96B-C).
[7] As can be seen from the
replication, the plaintiff denies the existence of a valid option and
that the first defendant duly exercised the option. The plaintiff
also raises several matters, which the plaintiff avers renders the
granting of the option and/or the exercise thereof illegal. These
may be summarised as follows:
(i) At a time when an executor had not
yet been appointed in the estate of the late Mrs Jordaan, Mr Jordaan
and the first defendant purported to enter into a lease agreement
which included an option to purchase the farm Marwil. The
plaintiff’s case is that Mr Jordaan had no authority to deal
with assets of the joint estate and therefore the option is of no
force and effect.
(ii) The purported option did not
comply with the provisions of section 1 of the Formalities of
contracts of sale of Land Act, 1969 (Act 71 of 1969) and is therefore
of no force and effect.
(iii) The option was not validly
exercised as the written notice in which the option is accepted was
received late.
(iv) The late Mr Jordaan did not comply
with the provisions of section 17(2) of the Agricultural (Commercial)
Land Reform Act, 1996 (Act 6 of 1995) (hereinafter “the Land
Reform Act”) and therefore the sale of the farm is of no force
and effect.
[8] In my view it is not necessary to
deal with all these matters. In stating this I mean no disrespect to
counsel on both sides who have shown great industry in presenting
thought provoking, thorough and helpful argument on a wide range of
interesting issues, some of which do not have easy answers. I thank
them. However, the fact is, even if I assume, without actually
deciding, that all the issues mentioned in (i) – (iii),
including that the first defendant effectively exercised the option
on 27 February 2003 (as submitted by their counsel), are to be
determined in favour of the defendants, it seems to me that the last
matter set out in (iv) should be decided in favour of the plaintiff.
My reasons are set out below.
[9] There have been several amendments
to the Land Reform Act. At the times relevant to this case sections
17(1), (2) and (3)(b) read as follows:
“17 Vesting in State of preferent
right to purchase agricultural land
(1) Subject to subsection (3), the
State shall have a preferent right to purchase agricultural land
whenever any owner of such land intends to alienate such land.
(2) Subject to subsection (3), no
agreement of alienation of agricultural land entered into by the
owner of such land after the date of commencement of this Part shall
be of any force and effect until the owner of such land-
(a) has first offered such land for
sale to the State; and
(b) has been furnished with a
certificate of waiver in respect of such land.
(3) Subsections (1) and (2) shall not
apply where agricultural land is alienated -
(a) ………………
(b) in the administration of a deceased
estate or in accordance with a redistribution of assets in such
estate between heirs and legatees;”
[10] The definition of “alienate”
in relation to agricultural land at that time was “sell,
exchange or otherwise dispose of against any valuable consideration
of whatever nature” and “alienation” had a
corresponding meaning. “Owner” in relation to land or
any registered right over land, meant “the person in whose name
such land or right is registered.”
[11] Mr Dicks submitted that the
granting of an option to purchase does not amount to an “alienation”
under the Land Reform Act. He relied on the following extract from
Strauss and Another v Labuschagne 2012 (2) NR 460 (SC) (at
474E-475I):
“[39] It is necessary now to
determine whether the scheme constitutes an 'alienation' of land
within the meaning of the Land Reform Act. The Act defines 'alienate'
as meaning, 'sell, exchange, donate or otherwise dispose of whether
for any valuable consideration or otherwise. . .' One of the
dictionary meanings of the word 'alienation' is 'the action of
transferring ownership to another' and 'to alienate' has an
equivalent meaning. This meaning, too, has been attributed to the
term 'alienate' by South African courts. Sale and exchange (the two
specific categories of alienation mentioned in the Act's definition
of 'alienate') also involve the effective transfer of ownership. One
of the purposes of both sale and exchange is to transfer ownership.
What of the category 'dispose of'? Again, the Shorter Oxford English
Dictionary definition of 'to dispose of' is 'to deal with definitely;
to get rid of; to get done with; to finish' as well as, in a
secondary meaning, 'to make over by way of sale or bargain' or to 'se
ll'. The common theme that unites the
instances of 'alienate' in the statutory definition (sale, exchange
and disposition) is the principle that ownership in the land is to be
transferred to a new owner.
[40] This ordinary textual
understanding of the word 'alienate' is also consistent with the
statutory context in issue here, and in particular with the purpose
of s 17 of the Act. Section 17 affords the state a preferent right to
purchase agricultural land to be used for land reform purposes,
before agricultural land is 'alienated' by its owner. This purpose
fits neatly with an interpretation of 'alienate' that is based on the
transfer of ownership by one owner to another, so that the state can
acquire land before another person acquires it. It sits less easily
with an interpretation that would include the granting of a lease
over the land, an interpretation that the respondent suggested.
Although it may well be that there are circumstances where it is
appropriate to interpret 'alienate' with a broader meaning, such a
broad interpretation does not seem to be appropriate here. To do so
would result in s 17 requiring owners to offer to sell their land, in
circumstances where they have not decided to transfer ownership in
the land, but merely to lease it or perhaps grant a right of way over
it. Such a result does not seem to fit well with the clear purpose of
the section. In the circumstances, respondent's argument that
'alienate' has a broader meaning than its ordinary dictionary meaning
cannot be accepted, as the ordinary meaning of 'alienate' fits more
easily within the context of s 17 of the Act.
[41] The question that then arises is
whether, on a reading of the express terms of the contractual scheme,
it can be said that they constitute an agreement to alienate the
farms. As is apparent from the analysis of the contractual scheme
above, it is not an ineluctable consequence of the scheme in issue in
this case that ownership of the farms will be transferred from Mr
Labuschagne to Mr Strauss. That consequence is certainly possible,
indeed probable, but it is not inevitable. As transfer of ownership
of the property is not a necessary consequence of the scheme, it
cannot be said to constitute an 'alienation' of land within the
meaning of the Land Reform Act. As reasoned above, an 'alienation' of
land implies the transfer of ownership from an existing owner to a
new owner. Such a transfer might well happen, and indeed even be
intended (a matter to which I turn below), in terms of the
contractual scheme here, but it is not the only outcome consistent
with the terms of the scheme. For it expressly contemplates and
permits Mr Labuschagne to change his will and bequeath the farms to
someone other than Mr Strauss, though if he does so, it regulates the
terms for the repayment of the loan.
[42] Accordingly, the high court's
conclusion that the contractual scheme entered into by Mr Labuschagne
and Mr Strauss constituted an 'alienation' of land within the meaning
of the Land Reform Act, cannot be accepted as correct. It is
necessary, therefore, to turn to the next question that arises and
that is whether the scheme is in fraudem legis.” (footnotes
omitted)
[12] I pause to note that the
definition of “alienation” quoted in this extract is a
later definition brought about by an amendment to the Land Reform
Act, but this does not affect the point made by Mr Dicks. Based on
the reasoning in the extract I agree with Mr Dicks that the granting
of an option to purchase does not amount to an “alienation”
under the Land Reform Act. Indeed, this follows in any event from
the very nature of an option granted, because until acceptance it is
merely-
“……… a form
of pactum de contrahendo, an agreement to make a contract in the
future. An option has two components: an offer proposing the
conclusion of a specific contract, and an agreement not to revoke the
offer.”
(Southline Retail Centre CC v BP
Namibia (Pty) Ltd 2011 (2) NR 562 (SC) at 576D)
[13] However, upon acceptance of the
option in the present case, the agreement of sale came into being as
an “agreement of alienation.” It is common cause that
the farm was not first offered to the State for sale and that no
certificate of waiver in respect of the farm had been furnished. Mr
Dicks submitted that subsections 17(1) and (2) do not apply because
of section 17(3)(b) which provides for an exception in the case where
agricultural land is alienated “in the administration of a
deceased estate or in accordance with a redistribution of assets in
such an estate between heirs and legatees.”
[14] In my view the alienation in this
case did not occur “in the administration of a deceased
estate.” At the time the option was exercised there was no
executor appointed to administer the estate. The estate was not
being administered. Quite apart from this, the farm was not
alienated by a duly appointed executor in order to cover the debts of
the estate or to give effect to the wishes of the testator as
expressed in a will, for instance that the farm be sold and that the
proceeds be shared equally amongst the heirs. These are acts which,
to my mind, would be alienations “in the administration of a
deceased estate.” It is so that the first defendant testified
that the late Mr Jordaan indicated that the farm had to be sold
because of estate duties which were payable in his wife’s
estate, but I agree with Mr Vermeulen that it is inherently highly
improbable that a person wishing to raise funds for estate duty would
enter into an uncertain arrangement by granting an option to purchase
for a period of four years (bearing in mind the period originally
intended when the agreement was drawn up), while not knowing whether
it would actually ever be exercised.
[15] The fact of the matter is that
both when the late Mr Jordaan granted the option to purchase and when
the first defendant exercised the option, the farm had not first been
offered to the State, no certificate of waiver had been furnished and
no estate was being administered. Had Mr Jordaan not died, the
agreement of alienation would have been of no force and effect. In
my respectful view the mere fact of his death and the timing of the
acceptance of the option do not change the position. It is mere
coincidence with no legal significance as far as the provisions of
section 17 are concerned.
[16] The result is therefore, that the
defendants must fail in their defence to the plaintiff’s claim
for eviction.
[17] As far as the second claim is
concerned, it is common cause that the lease agreement expired at the
end of February 2004, that the defendants remained in possession of
the farm and that they have not paid any rent since March 2004. It
is clear that the plaintiff in his capacity as executor is entitled
to claim damages for holding over. The basis of establishing and
calculating the damages suffered is the rental value for the period
that the defendants have been in unlawful occupation. In the amended
particulars of claim the allegation is made that the damages claimed
are based on the fair and reasonable monthly rental for the farm,
which was N$6 680.00. It is common cause that this was indeed the
monthly rental paid by the first defendant in terms of the lease
agreement during the last year of the lease and that this amount is
based on a sum of N$20 per hectare. Indeed, this rate per hectare
was paid since 2000, but each year the number of hectares leased
increased by 1 000 up to 4008 in the fourth and last year.
[18] Counsel for the defendants took
the point during argument that there was no expert evidence presented
to prove the allegation in the particulars of claim that the rental
value claimed was fair and reasonable. During cross-examination the
first defendant acknowledged that he agreed that the rental amount
set out in paragraph 4 of the lease agreement was fair and
reasonable. He was also referred to a letter written by his lawyers
dated 25 February 2004 (Bundle “A(31A)”) in which it was
indicated that he would be willing to continue paying N$20 per
hectare after the expiry of the lease agreement until payment of the
purchase price in respect of the farm. Later during
cross-examination, however, the first defendant was astute to decline
to comment on more than one occasion when it was posed to him that a
rental of N$20 per hectare is fair and reasonable. However, it is
common cause that the farm is lettable, that the first defendant has
been letting the farm to another lessee since 2008 and that the rent
being earned by the first defendant at the time he testified was N$18
000 including VAT. This amounts, rounded off to an amount of N$54
per hectare. The monthly rental claimed by the plaintiff would amount
to N$7 682 if VAT is included, which is N$23 per hectare. I take
note, however of the first defendant’s evidence that he has
effected improvements to the farm. On the other hand, I think it may
be accepted that rental values of farmland generally tend to increase
over the years. Bearing in mind, further, that leading counsel for
the defendants expressly indicated that the application for
absolution was confined only to claim 1, it seems to me that, all
things being considered, it is fair to say that, in the absence of
other evidence to the contrary, the rental value of the farm may be
taken to be at least N$20 per hectare. In the premises the second
claim is upheld.
[19] Counsel for the defendants
submitted that, in the event that the Court should find against the
defendants, the estate should pay their costs. In this regard he
relied on, inter alia, Nurok v Nurok’s Executors and others
1916 WLD 125 at 126, where the following was said:
“I come then to the question of
costs. The principle, as I understand it, which guides the court in
ordering costs to come out of the estate is that it does so where the
person who makes the will, or persons who are interested in the
residue, have really been the cause of the litigation, but if they
are not the cause of the litigation and the circumstances lead
reasonably to an investigation of the matter then costs may be left
to be borne by each of the parties. In other cases costs follow the
event. In the present case the testator was certainly to blame if he
intended the will to be valid ….”.
[20] Mr Dicks submitted that the
deceased, Mr Jordaan and his attorney were responsible for the lease
agreement and the option clause contained therein; that, according to
the first defendant’s testimony, the attorney as testamentary
executor, advised the first defendant on how to exercise the option
and then later reneged on his arrangement with the first defendant by
claiming that the option was exercised late. He pointed to further
defences which arose as time went on and submitted that it was the
deceased and the testamentary executor who caused the litigation.
[21] Counsel for the plaintiff, on the
other hand, submitted that the principles on which counsel for the
first defendant relied are not applicable to the facts of this case.
[22] Mr Strauss vehemently denied
during cross-examination that he advised the first defendant how to
exercise the option and that he indicated that the date of posting
the registered letter of acceptance would be taken as the effective
date. I must say that I find it improbable that he would have done
so, as he was not the first defendant’s attorney. Furthermore,
counsel’s suggestion that he reneged on his arrangement with
the first defendant suggests that he deliberately misled the first
defendant. The point is that Mr Strauss could not have known in
advance how fact the postal service would process the registered
letter and that it would arrive after 1 March 2003. Furthermore, in
his letter dated 18 March 2003 to the first defendant (Bundle
“A(65)”) very soon after the event he already
specifically emphasises the point that the letter was received on 4
March 2003. In my view it is improbable that he would have done so
if he knew that he had advised the first defendant so shortly before
that the date of posting would be the effective date.
[23] In Götz v The Master NO 1986
(1) SA 499 (N) the following was said (at 504H-J):
“Although the general rule that
costs follow the event applies in cases where the litigation concerns
a deceased estate, there are instances where the appropriate order is
that the costs be paid by the estate. Cilliers Law of Costs 2nd ed at
para 10.09; Bonsma NO v Meaker NO and Others 1973 (4) SA 526 (R) at
531C. It is, however, only in an indirect sense that the present
litigation concerns the administration of the deceased estate. It
more directly concerns the manner in which the Master should perform
the obligations imposed upon him by the Act. In the circumstances
there is no reason why the ordinary rule that costs follow the event
should not apply.”
[24] It seems to me that also in this
case the present litigation only indirectly concerns the
administration of a deceased estate. The first defendant testified
that when he exercised the option he did not think that a waiver in
terms of the Land Reform Act was necessary. He also said that the
question he posed in the acceptance letter, namely whether the
executor would be willing to sell the farm to a close corporation was
not intended to be a circumvention of the requirement of a waiver.
It is clear that he was either aware of the provisions of the Land
Reform Act or that he obtained legal advice before he exercised the
option. The fact that he is ultimately not successful on this issue
should not be laid at the door of the deceased or the testamentary
executor. In my view costs should follow the event.
[25] Furthermore, the plaintiff had to
institute action to claim damages for the continued unlawful
occupation by the defendants. I do not see why the estate should
bear the costs of this claim.
[26] I previously ordered that the
costs of the application for absolution from the instance stand over.
In light of the outcome of the action, these should likewise follow
the event.
[27] In the result the following order
is made:
3. The plaintiff’s claims are
upheld with costs, such costs to include the costs of one instructing
and one instructed counsel.
4. The costs of the application for
absolution are awarded in favour of the plaintiff, such costs to
include the costs of one instructing and one instructed counsel.
K van Niekerk
Judge
Appearance for the parties
For the plaintiff: Adv J
Schickerling
Instr. by Etzold-Duvenhage
And later Adv P J Vermeulen
Instr. by Van der Merwe-Greeff
Andima Inc
For the defendants: Adv R
Heathcote,
and with him, Adv G Dicks,
Instr. by Kirsten & Co.
And later Adv G Dicks
Instr. by Kirsten & Co
Jordaan N.O v Synman and Another ( I 1624/05) [2015] NAHCMD 17 (06 February 2015);