Boikhutsong Business Undertakings (Pty) Ltd and Another v Grobler NO

• Jurisdiction: South Africa
• Judge: Stewart CJ, Kotzé JA and Galgut AJA
• Judgment Date: 06 August 1987
• Hearing Date: 07 May 1987
• Court: Bophuthatswana Appellate Division

Galgut AJA:

The respondent in this appeal is the executor in the estate of the late Priscilla Motsuenyane (Priscilla), having been appointed as such in September 1976. He was the plaintiff in the Court a quo.

On 29 April 1982, by virtue of title deed T142/1982, portions 4 and 5 of the farm Wildebeestfontein 274, in the Bafokeng district (I shall refer to them as 'the property') were transferred from the South African E Development Trust (SADT) to the estate of the late Priscilla Motsuenyane, its heirs and successors in title, on 29 April 1982. The relevant portion of the title deed reflect that the SADT, as owner, is transferring the property and that the Minister concerned,

'erken dat die Suid-Afrikaanse Ontwikkelingstrust geheel en al van die F besit daarvan (the property) onthef is en nie meer daartoe geregtig is nie en dat uit krag van hierdie Akte, die genoemde boedel wyle Priscilla Motsuenyane, die se Erfgename, Opvolgers-in-Titel of Regsverkrygendes, nou en voortaan daartoe geregtig is en voortaan geregtig sal wees,... en ten slotte erken hy dat die eiendom op 7 Februarie 1969, verkoop is vir 'n bedrag van R6 400'.

The relevance of the description of the transferees and the date of the G sale will appear later.

The first appellant is a company. It carries on business, inter alia, as a general dealer. The second appellant is a shareholder and a director of first appellant. The evidence leaves one in no doubt that, as such, he was in fact in control of first appellant.

H In the summons commencing the trial in the Court a quo, first appellant was cited as first defendant. The second defendant, there cited, was the honourable Minister of Urban Affairs and Land Tenure of the Republic of Bophuthatswana. He was cited because of his possible interest in the relief claimed. I shall refer to the parties as was done in the Court a quo, viz as plaintiff, first defendant and third I defendant. The second defendant took no part in the proceedings and did not at any stage challenge the right of the transferees to the property. He abided by the decision of the trial Court.

During March 1982, that is a month before the above transfer, the Minister of Urban Affairs and Land Tenure in the Government of J Bophuthatswana, in the belief that the land in question was State land,

Galgut AJA

A entered into a lease with the first defendant in respect of portion of the property for a period of nine years and eleven months with an option of renewal for a further similar period. The land leased to first defendant was on portion 4 of the property. The first defendant thereafter proceeded to build a store on the land leased to it. It thereafter traded in the store. When those building activities B commenced, an application to interdict first and third defendants from continuing them was launched. A rule nisi was issued. The defendants in their affidavits contended that, despite the fact that the estate was the registered owner of the property, it was not in fact the owner and they further contended that the aforementioned lease was a binding and valid lease. The Judge dealing with that application was unable, on the C affidavits filed, to decide where the balance of convenience lay. He accordingly discharged the rule and ordered that the costs of the application were to be costs in the cause at the trial.

Thereafter, the plaintiff launched the present proceedings in the Court a quo and the matter proceeded to trial.

D The issues before the trial Court can be summarised. The plaintiff sought firstly an order declaring that he, in his capacity as executor, was the owner of the land leased to first defendant and, secondly, an order ejecting first defendant from that land. Plaintiff also sought appropriate orders as to the costs of the action and the costs of the aforementioned application. The first defendant pleaded that plaintiff was not the owner of the property; that, at the time the lease was E granted, the Minister of Urban Affairs and Land Tenure of Bophuthatswana, in his capacity as such, was the owner of the property; that the lease granted by him was thus a valid lease.

In the alternative, first defendant pleaded that the SADT (and also F plaintiff) was estopped from alleging that the lease was invalid.

In the further alternative, the first defendant, who had completed the building and was trading therein, pleaded a ius retentionis claiming that he had incurred much expense in erecting the buildings and could not be ejected without being compensated therefor. First and third defendants both sought appropriate orders as to costs.

The learned trial Judge, after a lengthy trial (the record of the G evidence and the documents filed run into several thousand pages) reserved judgment. He thereafter, on 1 October 1986, made the following orders:

'1.

It is hereby declared that the plaintiff is the owner of portion 4 (a portion of portion 2) of the farm Wildebeestfontein 274, H registration division JQ, district Bafokeng.

2.

The first defendant and all persons claiming or holding through or under it are hereby ejected from the aforesaid property.

3.

The first and third defendants shall pay the costs of suit on the attorney and client scale, jointly and severally, the one paying the other to be absolved, including the costs consequent I upon the employment of two counsel....'

First and third defendants then noted an appeal. Copies of the record were duly filed and served. However, the defendants failed to furnish security, for plaintiff's costs of appeal, within the period prescribed by the Rules of this Court. This failure was not due to any fault on the part of the defendants. It was due entirely to the fault of their J attorney. He has

Galgut AJA

A explained on affidavit that he mistakenly believed that, as plaintiff was a peregrinus, defendants did not have to furnish security. In March 1987, plaintiff's attorney requested defendant's attorney to furnish security. The latter then sought counsel's opinion and was advised that security had to be furnished. He then sought to fix a figure with plaintiff's attorney. The attorneys were unable to agree on the amount. B Certain further steps relating to security were taken by defendant's attorney. They need not be detailed as they came to no avail. When the appeal was called, there was before us an application for condonation of the failure to file security. This application was opposed by plaintiff. Before allowing argument on the issue of condonation to proceed, the C defendants were advised that this Court had to be satisfied that adequate security was available and could be furnished. The parties had a short discussion and we were advised that security to the satisfaction of plaintiff had been agreed and furnished. This Court then heard full argument on the issue of condonation. The parties were, however, directed to argue the merits of the appeal. This was done because the D prospects of success in an appeal may be a factor to be taken into account when a Court is considering the issue of condonation. Judgment was then reserved.

It appears from what has been set out above that the defendants were at all times desirous of proceeding with the appeal; that they were willing and able to furnish security; that the failure to file security E was due to their attorney's mistaken view of the law; that the period of delay, though not trifling, was not long; and that there had not been a wilful breach of the Rules of this Court. It was not suggested that the appeal was frivolous. The matter is of great importance to both parties. Furthermore, the issue of the interpretation of the relevant statutory F provisions is not an academic matter. The principles governing condonation for non-compliance with Rules of Court have frequently been discussed; see Auby and Pastellides (Pty) Ltd v Glen Anil Investments (Pty) Ltd 1960 (4) SA 865 (A) at 869 - 70; Meintjies v H D Combrinck (Edms) Bpk 1961 (1) SA 262 (A) at 264 - 5; P E Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 798 - 9; Association of Amusement and Novelty G Machine Operators and Another v Minister of Justice and Another 1980 (2) SA 636 (A) at 655D and the cases cited at the above pages. Having regard to the factors detailed above, we are of the view that the failure to file security timeously should be condoned subject to the defendants paying all the costs occasioned by the application for condonation and H opposition thereto. These costs were in fact tendered by the defendants.

The notice of appeal, in its amended form, sets out detailed grounds of appeal. I do not deem it necessary to detail them. The grounds urged in this Court will be set out later. As will be seen from the above, the main issues at the trial were, whether the estate is the owner of the property and entitled to the ejectment order, or whether, as first I defendant maintains, the Bophuthatswana Government is the owner of the property with the consequence that first defendant is entitled, by virtue of the lease, to occupy the shop premises. The problems arise from the provisions of Proc 347 of 1977 promulgated by the State President of the Republic of South Africa. Before setting out the relevant provisions of Proc 347 of 1977, it is necessary to be reminded J that the SADT was the successor to the South

Galgut AJA

A African Bantu Trust. I also stress that the Government of Bophuthatswana makes...