REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 28288/2019

(1)	REPORTABLE: NO
(2)	OF INTEREST TO OTHER JUDGES: NO
(3)	REVISED: NO
 
Date:	    24 November 2021	E van der Schyff

In the matter between:
LEEUWLOOP BELEGGINGS (PTY) LTD			PLAINTIFF
and
C A KRUGER			FIRST DEFENDANT
P J KRUGER			SECOND DEFENDANT
A NOLA N.O.			THIRD DEFENDANT
L L MAKANANI			FOURTH DEFENDANT
J M RAMODIMETJA			FIFTH DEFENDANT
 			
JUDGMENT
Van der Schyff J
Introduction and background

[1]	The plaintiff owns immovable property described as portions 86 and 87 (both portions of portion 9) of the farm Leeuwfontein, situated in Gauteng (portions 86 and 87 respectively). 

[2]	The first and second defendants are the joint owners of one undivided half share in the immovable property described as portion 88 (a portion of portion 9) of the farm Leeuwfontein, situated in Gauteng (portion 88). The remaining undivided share of portion 88 falls in the deceased estate of the first and second defendant’s father (the deceased), which estate is represented by the third defendant. 

[3]	The fourth and fifth defendants and their families reside on portion 87, although they are employed by the first defendant on portion 88. The action is defended by the first, fourth, and fifth defendants (the defendants). The third defendant filed a notice to abide. Despite service of the combined summons in accordance with the Uniform Rules of Court, the second defendant did not file a notice of intention to defend the action.

[4]	The plaintiff seeks declaratory relief as set out below. The relevant common cause facts are the following:

i.	During 2007 a verbal agreement (the first agreement) was entered into between the plaintiff, the first and second defendants, and the deceased. The late Dr. Z. C. Kruger represented the plaintiff. The deceased represented himself and the first and second defendants. Dr. Kruger and the deceased were brothers.
ii.	The parties agreed that portions 86, 87, and 88 would be consolidated with the view of developing the consolidated property into one hectare stands for high-end accommodation to be erected thereon by the new owners.
iii.	During 2008, the parties entered into a further verbal agreement (the second agreement). Although the reason for the parties concluding the second agreement and the comprehensive terms thereof constitute the main points of dispute in the action, the parties are in agreement that the following was agreed to:
a.	The respective gates and roads that provided access to portions 86 and 88 from the public road would be closed. Portions 86 and 88 would obtain access to the public road via the access gate and road that provided access to portion 87. The owners, occupants, and visitors of portions 88 and 86 would be allowed to use the access gate and part of the access road on portion 87 (hereafter the communal road and gate) to obtain access to portions 86 and 88, respectively. The access gates on portions 88 and 86 were closed, and the communal road and gate provided access to portions 88, 87, and 86.
b.	Although it was pleaded by the first defendant that the second agreement was a permanent agreement and not subject to any conditions, the first defendant conceded during cross-examination that the parties foresaw that when the development was completed that the access gate on portion 87 would be closed, and a new access road would be developed. A new access gate would be erected on portion 86. Hence, this is listed as a common cause fact.
iv.	The fourth and fifth defendants occupy dwellings on portion 87 after being moved from portion 88, where they previously resided.
v.	Portions 86, 87, and 88 were not consolidated.
vi.	In a letter dated 31 October 2018, the plaintiff informed the first to third defendants of his election to cancel the arrangements pertaining to the defendants’ use of the communal road and gate, and the residency of the fourth and fifth defendants on portion 87 as per the second agreement. The first defendant answered in a letter dated 6 November 2018 and informed the plaintiff that he, the occupants, and visitors to portion 88 would continue to use the communal gate and road, and the fourth and fifth defendants would continue to occupy the dwellings on portion 87.

[5]	The points of contention are the following:
i.	As for the cancellation of the first agreement, the consolidation- and development agreement, the plaintiff avers the agreement was cancelled verbally during 2011. The first defendant denies that the first agreement was cancelled.

ii.	As for the use of the communal road and gate, the plaintiff avers that the second agreement merely contained temporary arrangements pending the finalisation of the consolidation and development. The agreement was entered into for security purposes during the intended development and consolidation of the property. The parties agreed that the owners of portions 86, 87, and 88 would collectively and in equal shares be responsible for the maintenance and upkeeping of the communal road and gate and expenses related thereto. If the intended development should not materialise for whatever reason, and portions 86, 87, and 88 not be consolidated, the second agreement could be cancelled at any time to the exclusive discretion of the owner of portion 87 by informing the other contracting parties. The first defendant alleges that general security concerns raised by the broader Roodeplaat community led to the conclusion of the second agreement, although security concerns relating to the development itself were also considered. The first defendant avers that each of the property owners would only be liable for maintaining the road on their respective properties, and the owner of portion 87 would solely be liable for the maintenance of the gate. 

iii.	As for the residency of the fourth and fifth defendants on portion 87, the plaintiff avers that the parties agreed that construction workers employed by the first defendant, who would have assisted with the construction work relating to the development, as well as the fourth and fifth defendants would reside in existing dwellings on portion 87 for the duration of the construction works of the intended development. The first defendant avers that the agreement that the fourth and fifth defendants may reside on portion 87 was not a temporary arrangement but permanent. He denies that the parties agreed that the second agreement could be cancelled as claimed by the plaintiff and avers that the second agreement was a permanent agreement that was never subjected to any conditions.

[6]	The fourth and fifth defendants also denied that the arrangement that they reside on portion 87 was temporary. They pleaded that the provisions of section 3(d) of the Subdivision of Agricultural Land Act 70 of 1970, alternatively section 1 of the Formalities in respect of Leases of Land Act, 18 of 1969, are not applicable as they are domestic employees of the first defendant and their right to reside on portion 87 arose in terms of the second agreement.

[7]	The plaintiff replied to the first defendant’s plea wherein it is stated that the second agreement was of a permanent nature. The plaintiff denied this averment and pleaded that even if the parties so agreed, such an agreement will be invalid and unenforceable due to the fact that it was never reduced to writing and does not meet the requirements of section 2 of the Alienation of Land Act 68 of 1981 and section 5 of the General Law Amendment Act 50 of 1956.

[8]	It is against this background that the plaintiff seeks an order declaring:
i.	That the arrangements contained in the second agreement were temporary and that the plaintiff is entitled to cancel the second agreement;
ii.	That the cancellation of the second agreement is valid and confirmed;
iii.	That the fourth and fifth defendants are in unlawful occupation of the dwellings on portion 87.

The evidence

[9]	Mr. H le Roux, a director of the plaintiff, testified on behalf of the plaintiff. His evidence was consistent throughout, and his demeanour was calm and contained. He maintained that the second agreement flowed from the first agreement. It was concluded to deal with practical arrangements to facilitate the development. He testified that Dr. Kruger represented the plaintiff in the negotiations with the deceased while he represented the plaintiff when dealing with the town planners. He explained that the second agreement was never intended to set in place any permanent arrangement regarding the use of the communal road and gate and the residency of the contract workers and the fourth and fifth defendants on the property. Such arrangements, if permanent, would refute the aim of developing the property once consolidated. The plan was to demolish the structures occupied by the contract workers and the fourth and fifth defendants when the development was concluded. He was under the impression that the fourth and fifth defendants moved onto portion 87 because they were related to some construction workers. The fourth and fifth defendants were not parties to any agreement concluded with the plaintiff. It was put to Mr. Le Roux by the defendants’ legal representative that evidence will be led that the fourth and fifth defendants’ partners were not construction workers but farmworkers. 

[10]	Mr. Le Roux also testified, as the first defendant later conceded, that the communal land and gate were not intended to be permanently used. Once the development was finished, it would have been replaced by another main road and access gate. If the development could not materialise, the second agreement would likewise be cancelled. His evidence was that the second agreement was cancelled in 2011 due to financial reasons because the development was not viable. He, Dr. Kruger, the deceased, and the first defendant were present when it was agreed that the development could not proceed. The cancellation was done verbally. Despite the cancellation, the status quo relating to the communal road and gate and the residency of the fourth and fifth defendants remained intact for about seven years. This was ascribed to the unique relationship between Dr. Kruger and the owners of portion 88. The plaintiff was sensitive to this relationship even after Dr. Kruger passed away. However, Mr. Le Roux testified that he also has a fiduciary responsibility towards the plaintiff. After a prospective sale of portions 86 and 87 fell through because of the fourth and fifth defendant’s presence on portion 87, he realised that it was necessary to move forward. The first agreement that formed the basis and cause for the second agreement was already cancelled in 2011. He thus cancelled the second agreement formally in 2018, via a letter sent to the defendants by his attorney. 

[11]	During cross-examination, it became evident that the defendants regarded the first and second agreement as two completely separate agreements. It was put to Mr. Le Roux that the security concern of the greater Roodeplaat area was the primary reason for the parties agreeing to use one access gate and communal road and move the fourth and fifth defendants and their families from portion 88 to portion 87 permanently. Despite the fact that the first defendant admitted the terms of the first agreement as set out in the plaintiff’s particulars of claim in his plea, the defendants’ legal representative repeatedly questioned the terms of the first agreement as set out in the particulars of claim in paragraph 4.1. It was put to Mr. Le Roux that: (i) he was not present when the terms of the first agreement were agreed to by the deceased and Dr. Kruger; (ii) the first defendant denies that the first agreement was cancelled; (iii) the first defendant denies that the arrangements provided for in the second agreement were of a temporary nature; (iv) the owners of the respective portions were only liable for the maintenance of the roads on their respective portions and not for the maintenance of the communal road or access gate in equal portions; (v) the first defendant demolished the fourth and fifth defendants’ residence on portion 88 and used the material to build homes for them on portion 87; (vi) the arrangement that the fourth and fifth defendant could reside on portion 87 was a permanent arrangement.

[12]	The first defendant testified on behalf of the first, fourth, and fifth defendants. His evidence reveals that he is a co-owner of portion 88 and has stayed on the property since the eighties. The fourth and fifth defendants are domestic workers who initially resided on portion 88. After the first agreement was concluded and because the fourth and fifth defendants’ houses were situated where roads were to be developed on portion 88 and for security reasons, the second agreement was concluded that their accommodation be moved to portion 87. The houses wherein they were staying were demolished, and the building material was used to build new accommodation for them on portion 87. Although the first defendant acknowledged that the proposed development was earmarked for high-end users who would be able to erect expensive housing, he could not explain how the worker’s accommodation would be accommodated in such a development if the arrangement was that the fourth and fifth defendants be moved to portion 87 permanently. He conceded that the worker’s accommodation cannot be comparable to the accommodation envisaged to be erected if the project was successfully concluded. During cross-examination, he testified that eventually, all the structures on portions 86, 87, and 88 would be demolished except for his house on portion 88 and the main house on portion 87. He said that he never received instructions from Dr. Kruger and the deceased regarding where the fourth and fifth defendants would ultimately be accommodated when the project is completed. He later said that if the fourth and fifth defendants remained there, a new structure would probably have had to be built for them to reside on. He thought that the area where their accommodation is is ideal for the erection of a clubhouse where people would come together. The first defendant testified that Dr. Kruger and the deceased took the decisions regarding the proposed development and the practical arrangements to facilitate the development regarding, amongst others, the road closure, and the demolition of structures on portion 88, and the movement of workers’ accommodation. He just executed their instructions. He stated again that as far as the fourth and fifth defendants are concerned, his instructions were that they could remain on portion 87 until he was informed what to do next, and he never received such further instructions from either the deceased or the late Dr. Kruger. The development came to a halt when Dr. Kruger and the deceased passed away. The first defendant denied that the first agreement was cancelled and said that the family needs to come together to decide on the matter. He, however, also stated that he holds a different idea than the family.

[13]	The first defendant denied that the parties agreed that the owners would proportionally contribute to maintaining the common road and gate.

[14]	Mrs. Kruger, the first defendant’s wife, was called to testify. The only relevant aspect of her evidence is that portion 87 is not landlocked. She was called as a witness to testify regarding certain photographs she took of the property, but after an objection was raised by the plaintiff’s counsel hat the context of her evidence and the photographs were not put to the plaintiff during cross-examination, the defendant’s attorney discontinued this line of questioning. 

[15]	From the first defendant’s demeanour, it is evident that he is emotional about the litigation. He regards the proposed development as a ‘legacy’ to his father, the deceased, and his uncle Dr. Kruger. From his demeanour and the content of Exhibit 2, it is evident that he feels that he was prejudiced and suffered harm in the way events unraveled. He said that his view regarding the development is different from his family’s. His evidence, however, was not consistent. Although he started out testifying that the arrangements contained in the second agreement were of a permanent nature, it was clear that the arrangements were merely temporary pending the finalisation of the proposed development. He conceded during cross-examination that the parties foresaw that a new access road and gate would be erected on portion 86. This indicates that the use of the communal road and gate was never intended to be permanent. As for the occupancy of the first and fourth defendants on portion 87, the plaintiff proved on a balance of probabilities that the agreement was temporary, pending the finalisation of the development. The fact that the first defendant did not receive instructions to move the fourth and fifth defendants’ accommodation does not indicate that the arrangement was permanent. He testified that if a clubhouse were to be erected, as it was planned, their accommodation would have had to move. He also conceded that the worker’s accommodation on portion 87, where it is currently situated, would not blend in with the surrounding developed environment when the development was concluded. 

[16]	As for the dispute that the first agreement was cancelled, the only reasonable inference that can be drawn from the facts placed before the court is that the consolidation and development agreement was cancelled. Mr. Le Roux is the only witness who was intrinsically involved in the planning and managing of the proposed development. His evidence was consistent throughout, and there is no reason not to attach weight to it. The first defendant, in his own words, only followed instructions. Although it cannot be said that he deliberately tried to mislead the court, I am of the view that his recollection of events is tainted by the fact that he wants to protect what he deems to be a ‘legacy,’ although his family might have a different view. The first defendant lost sight of the fact that this is not a family project as he regarded it. The plaintiff is a juristic person, and I find it strange that the attorney representing the first defendant submitted that the court must consider that the agreements were concluded between family members. Even if that was the case, the relevance thereof escapes me. I also considered the content of Exhibit 2, a letter dated 6 November 2018 written by the first defendant to the plaintiff’s attorneys of record in answer to a letter dated 31 October 2018 that he received from them. From this letter, it is evident that the construction business, a family venture, earmarked to facilitate the construction works on the property was dismantled in 2011. This fact supports a finding that the first agreement was cancelled in 2011.

[17]	Although I accept that the decision to move the workers’ accommodation from portion 88 to portion 87 would enhance the security since it would limit the movement on the properties because this accommodation was nearer to the access gate, this does not entitle the owner of portion 88 to expect the owner of portion 87 to carry the burden of providing accommodation to the workers of portion 88 after the proposed development was abandoned.

[18]	On the evidence, the plaintiff made out a case for the relief sought. Although no evidence was led regarding the specific date of the cancellation of the first agreement, the facts support a finding that the first agreement was indeed cancelled. Although the basis for the existence of the second agreement fell away when the first agreement was cancelled, the plaintiff specifically cancelled the second agreement in the letter dated 31 October 2018.

[19]	Counsel for the plaintiff referred me to Janse van Rensburg and Another v Koekemoer and Others 2011 (1) SA 118 (GSJ), where the court held that a servitude of habitatio may not be created by oral agreement. Claasen J held that a right for residence on land for life constitutes an ‘interest in land; which is included in the definition of land in s 1 of the Alienation of Land Act, 68 of 1981, (the ALA). The requirement in s 2(1) of the ALA that agreements relating to the alienation of land be in writing, renders an oral agreement alienating a right of residence for life in land of no effect. Counsel argued that if the first defendant’s evidence that the fourth and fifth defendants were entitled to live permanently on the property is accepted, it amounts to a right for residence on land for life. In light of the findings I came to above that both agreements were cancelled, it is not necessary to determine the enforceability of the terms of the second agreement inter partes, in circumstances where no portion of the land concerned was alienated to a third party.

[20]	It is common cause that the fourth and fifth defendants are employed by the first defendant. They and their families have resided on portion 88 of the land from around the time the first defendant’s family acquired it. They were only moved to portion 87 by virtue of the second agreement. There is no basis to find that the first defendant can claim that his domestic workers be provided with accommodation on portion 87 when the consolidation- and development of portions 86, 87, and 88 did not materialise. If the fourth and fifth defendants are entitled to claim that the first defendant provides them with accommodation due to their employment relationship and history with the first defendant, their claim lies against the first defendant. While the second agreement was in place, the fourth and fifth defendants were not in unlawful occupation of the property on portion 87. With the agreement being cancelled, their entitlement to reside on portion 87 fell away.

[21]	I did not deal with each of the questions posed by the defendants’ attorney in his heads of argument as I am of the view that they are irrelevant and do not take the matter any further. I disagree with his submission that ‘this is a case for the court to decide if security is enough reason for the right of way between civilians and more specifically reason enough for a servitude, a right of way to be permanent.’ The evidence does not sustain a finding that the communal road is a via neccessitatis. 

[22]	The principle that costs follow success applies. However, because neither the fourth or fifth defendants were called to testify, and because it is evident that the fourth and fifth defendants are the innocent victims of a failed business venture to which the plaintiff and the first defendant, amongst others, were parties, I am of the view that it is justified to find that that they are not responsible for any of the costs of this litigation. As counsel for the plaintiff correctly pointed out, these proceedings are not eviction proceedings but were instituted to obtain a declaration of rights.

ORDER
In the result, the following order is made:
1.	It is declared that the arrangements set out in paragraphs 5.1.1 to 5.1.4 of the particulars of claim were temporary, and the plaintiff was entitled to cancel same;
2.	It is declared that the plaintiff’s cancellation of the arrangements set out in paragraphs 5.1.1 to 5.1.4 of the particulars of claim is valid, and hereby confirmed;
3.	It is declared that the fourth and fifth defendants are in unlawful occupation of the dwellings occupied by them on the immovable property described as portion 87 (a portion of portion 9) of the farm Leeuwfontein No 299, Registration division J.R., Gauteng Province.
4.	The first defendant is ordered to pay the costs of this application.

____________________________
E van der Schyff
Judge of the High Court

Delivered:  This judgement is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal representatives by email. The date for hand-down is deemed to be 24 November 2021.

Counsel for the plaintiff:	Adv. J. Kruger
Instructed by: 	Willem Coetzee Inc.
For the 1st, 3rd and 4th defendants:	Mr. J. Ströh
Instructed by:	Ströh Attorneys	
Date of the hearing:	15 & 16 November 2021	
Date of judgment:	 24 November 2021