Ex parte Kotzé

• Jurisdiction: South Africa
• Judge: Landman AJ
• Judgment Date: 09 October 2003
• Citation: 2004 (3) SA 74 (B)
• Docket Number: 592/03
• Hearing Date: 02 October 2003
• Counsel: D G Olivier (attorney) for the applicant.
• Court: Bophuthatswana High Court

Landman AJ:

[1] Mr Louis Adriaan Kotzé, the applicant, applies for an order in terms of s 2 of the Age of Majority 57 of 1972. The applicant B was born on 12 July 1983. He grew up on the farm Steenbokfontein and still lives there. His mother and grandmother supported his venture into farming.

[2] He was determined to farm on Springbokfontein when he grew up. He began to do so when he left school in December 2000. He farms for his own account. He is solely responsible for the income and C expenditure of the business. His farming is profitable. He would like to extend his farming activities. He has six workmen in his service. He submits that his agricultural experience is such that he should be regarded as financially mature. D

[3] In addition to his farming activities, he has another business. Two years ago, he established a business which sells entertainment games to businesses in Rustenburg. It is a profitable venture.

[4] He lives in his parental home. But, he submits that he is financially and emotionally independent and self-supporting. I should add that his parents are divorced. His mother has remarried and lives with her husband on the farm. His mother and father support his E application.

[5] He owns three pieces of immovable property which he inherited from his grandfather, the late Mr P R Botha. Together, the properties comprise 33 hectares. On one of the properties is the limited right to have eight cattle graze on the land. The properties are registered in the applicant's name but are subject to a usufruct F in favour of Mr Izak Jacobus Botha. Mr I J Botha is prepared to relinquish his rights over the property.

[6] The applicant has received an offer from Mr Savvas Sophocleous to purchase the properties for R160 000. This offer is not in writing, although a 'deed of sale' has been signed by the G applicant, assisted by his parents. Clause 21 of the deed of sale contains the following condition:

'1.

Toestemming moet deur die Hooggeregshof van Suid-Afrika (Transvaalse Provinsiale Afdeling) te Pretoria gegee word dat die eiendom deur Verkoper verkoop mag word. H

2.

Die vruggebruik van Izak Jacobus Botha oor die eiendom moet gekanselleer word.

3.

Die partye stem toe dat daar 'n ooreenkoms tussen hulle gesluit sal word vir die gebruik van 50% van die lande onderling besluit tussen die partye en hierdie ooreenkoms sal dan deel vorm van hierdie Koopkontrak.' I

[7] The agreement referred to in clause 21(3) has been concluded in writing between the applicant and Mr Sophocleous. The applicant submits that it would be financially prudent to sell the property and to plough the proceeds into his farming business, rather than retain the property which cannot be used optimally. A sworn appraiser has valued the property at R 110 000. So much for the facts. I turn to the law. J

Landman AJ

[8] The Age of Majority Act provides in s 1 that: A

'All persons, whether males or females, attain the age of majority when they attain the age of 21 years.'

Any person who has obtained the age of 18 years may, subject to the provisions of the Act, apply to the Provincial Division of the High Court of South Africa having jurisdiction in the area within which such person is ordinarily resident for an order declaring him to be a major B (see s 2). The application must be in the form of a notice of motion addressed to the registrar of the Court and must be supported by an affidavit in which certain facts must be stated (see s 3).

[9] At this stage, it is necessary that I deal with certain submissions made by Mr Olivier who appeared for the C applicant. He submitted in his heads of argument that:

'There are new, important developments which may, as of right, entitle an applicant who is older than 18 years of age to an order in terms of Act 57 of 1972. He relies on the following developments:

(a)

The Constitution of the Republic of South Africa 1996 provides in s 28 that: D

''(1) Every child has the right -

(a)

to name and a nationality from birth;

(b)

to family care or parental care, or to appropriate alternative care when removed from the family environment;

(c)

to basic nutrition, shelter, basic health care services and social services; E

(d)

to be protected from maltreatment, neglect, abuse or degradation;

(e)

to be protected from exploitative labour practices;

(f)

not to be required or permitted to perform work or provide services that -

(i)

are inappropriate for a person of that child's age; or

(ii)

place at risk the child's...