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IN THE HIGH COURT OF DIVISION,

Reportable: YES/NO Of Interest to other Judges: YES/NO Circulate to Magistrates: YES/NO

Case no: 1432/2021

In the matter between:

GEOFFREY MONTAGU SOUTHEY Applicant and

COLIN JOHN VORSTER 1st Respondent

JAC N COETZER AFSLAERS 2nd Respondent

KOBUS JACOBS 3rd Respondent

SHERIFF OF THE HIGH COURT 4TH Respondent BLOEMFONTEIN ______

CORAM: C NEKOSIE AJ ______

JUDGMENT BY: C NEKOSIE AJ 2

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HEARD ON: 27 MAY 2021 ______

DELIVERED ON: The judgment was handed down electronically by circulation to the parties` legal representatives by email and release to SAFLII on 9 June 2021. The date and time for hand down is deemed to be 9 June 2021 at 12h30. ______

[1] The applicant brought an urgent ex parte application for the relief set out in the Notice of Motion on 30 March 2021. The orders were granted with a return date of 29 April 2021. On the return date the matter was postponed to 27 May 2021 for hearing.

[2] It is necessary to briefly set out the background to this application. In terms of the Court order granted by this Court under case number 3052/2020 on 14 October 2021, the Second Respondent widely advertised and conducted an auction of the immovable and movable property including cattle on the Farm Bekerfontein, Tierpoortdam in the district of Bloemfontein on 25 February 2021.

[3] The Third Respondent attended the auction on behalf Kopetca (Pty) Ltd. and bought Lot 19, consisting of 13 cows and 8 calves for the amount of R 224 250.00 (two hundred and twenty-four thousand two hundred and fifty rand). The amount was paid and the cattle were received and transported to the Farm Bulfontein, Reddersburg.

[4] In the current application the Applicant, who resides on the Farm Montagu, , avers that he entered into Profit Sharing 3

Agreement (the Agreement) with the First Respondent, who resides at the Farm Bekerfontein, Tierpoortdam in the district of Bloemfontein, some 200km away, on 26 March 2019 at Tierpoortdam.

[5] Essentially the First Respondent leased 50(fifty) cows with calves from the Applicant for 3(three) years. This agreement and terms contained therein forms the basis for the relief sought by the Applicant.

[6] On 1 March 2021, after the aforementioned auction, the Applicant, who for the past 2(two) years, supposedly, was under the impression that his cattle were with the First Respondent as agreed, very fortuitously receives a phone call from a third party informing him that his cattle and offspring were sold at the auction.

[7] The third party who dubiously wanted to remain anonymous, one must accept knew the brandmark of the Applicant whose farm was approximately 200km from where the auction was. He further had to know the contact details of the Applicant. This leaves me with the suspicion that the anonymous caller was the First Respondent who has coincidently been ominously absent from these proceedings despite having an obvious interest in these proceedings.

[8] A serious of events took place prior to the application being brought to Court. My assessment of the events, particularly the Applicant`s interaction with the Third respondent, is that they were included in the Applicant`s founding affidavit to persuade the court that the matter 4

was urgent. This aspect has since become mute and therefore I deem it redundant to deal with same. [9] The Court, on 30 March 2021 granted the Applicant the following interim orders as contained in paragraph 2 in the Notice of motion:

9.1 The Second Respondent to make available to the Applicant and its representatives all documentation relating to the auction, which includes, but is not limited to names, addresses and contact details of successful bidders of the cattle, attendance lists and advertisements placed.

9.2 The Third Respondent and/or any other person who may be in possession of the cattle bearing a brand or ear tag of the Applicant to return such cattle to the Applicant and the Fourth Respondent with immediate effect.

9.3 The Fourth Respondent to accompany the Applicant and its representatives to the premises of the Third Respondent or any other premises where the cattle of the Applicant may be located, and to restore Applicant's possession of the cattle; and

9.4 Interdicting the Third Respondent and/or any buyer of the Applicant's cattle at the auction from transferring possession of the cattle and/or slaughtering the cattle and/or disposing of the cattle in any manner.

[10] The matter became opposed and postponed with new time frames set for filing of answering and replying affidavits by the respective 5

parties. The Second and Third Respondent complied and filed their opposing papers on 4 May 2021. The Applicant had to file his replying affidavit by 18 May 2021 but failed to do so. Instead he filed an application for postponement on 21 May 2021 which was deposed to on 20 May 2021.

[11] The essence of the application is that the Second Respondent failed to comply with the order of 30 March 2021 by not providing all the information pertaining to the auction, thus he was not able to fully reply to the respective answering affidavits.

[12] The reason for the application for postponement necessitated that the following be considered before a ruling can be made: 12.1 What the purpose of the main application was; 12.2 What the Second respondent was ordered to provide to the Applicant; 12.3 Whether that which were provided by the Second Respondent established compliance with the order or not and

[13] In the main application the Applicant alleges that he is the owner of the cattle that was sold on the auction and launched the application to be informed of the whereabouts of his cattle to regain possession thereof. The Sheriff was ordered to return the cattle to the Applicant from any premises where it is located. This is clear from paragraph 2.2 and 2.3 of the Notice of Motion as referred to in paragraph 9.2 and 9.3 hereof.

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[14] It is notable that no other remedies of a pecuniary nature were sought in the application. I therefore accept that the application was brought solely on the basis of rei vindicatio, having his possession of what he allegedly own restored.

[15] Turning to the information that was required from the Second Respondent. He had to make available all documentation relating to the auction. An auction is defined as “a public sale of goods or property, one in which prospective purchasers bid against each other until the highest bid price is reached”.1 In the Oxford English Dictionary an auction is defined as “a (usually public) sale in which articles are sold to or reserved for the highest bidder”.2 These definitions clearly refer to an auction as being one event which, once the final bid is accepted and paid, is concluded. What purchasers and the auctioneer do with the property bought and the proceeds received do not form part of the event because the auction has been finalised. Therefore, the information required relates to the completed event, the auction only.

[16] The papers filed reflect that the Second Respondent, in response to the Court Order, provided the Applicant with the names, contact details and addresses of the people registered to participate in the auction. He informed what their bid numbers were and who bought the cattle that was auctioned. He even provided the purchase prices and copies of the various advertisements that were placed in various publications and on flyers prior to the auction.

1 Collins English Dictionary – Complete and Unabridged, 12th Edition 2014 2 The New Shorter Oxford English Dictionary on Historical Principles 1993 Edition 7

[17] The Applicant, after receiving the documents referred to in paragraph 16 above, requested the following additional information:

17.1 The total proceeds of the auction received by the Second Respondent. 17.2 A list of all payments made from the proceeds of the auction including the details of the persons and/or entities to whom such payment were made and the amounts so paid.

17.3 A reconciliation of all the proceeds of the auction including all payments received and all payments made.

[18] Ms Ferreira submitted that the wording “all information relating to the auction” was for the applicant to obtain all relevant information, which includes information contained in paragraph 17 above. She further submitted that it was not for this Court to decide on the sufficiency of the documents provided.

[19] The submission is flawed. The essence of the application for postponement is for the applicant to receive further information from the Second respondent to enable him to reply to the answering affidavits. The argument suggest that this Court should not concern itself with nature, purpose and relevance of the information in relation to the main relief sort. It should simply grant the application because the applicant says he requires it. The Court is obliged to approach the application judiciously by considering the full spectrum of circumstances of the matter at hand, thus it necessitates that the 8

Court evaluate whether the further information is necessary and relevant to assist the Applicant to attain the relief he seeks in the main application.

[20] When Applicant approach the Court with the ex parte application it was to regain possession of his cattle. The information provided to him by the Second Respondent provides him with the whereabouts of all the cattle sold at the auction. It placed him in a position to take steps to join those he now knew had his cattle. In the absence of a claim for damages, the Second respondent in my view fully complied with the interim order. A further postponement would serve no purpose other than to delay finalisation of the matter. Indicative of deliberate delay of the matter is the fact that the Applicant, when realising the postponement would not be forthcoming, indicated that its replying affidavit was ready and could be attested to and handed in to Court if an adjournment for that purpose was granted.

[21] The application for postponement was refused and the parties were directed to proceed with arguments on the merits of the main application.

[22] It is acknowledged that Ms Ferreira was now called upon to argue without having filed heads of arguments on the main application. This is an unfortunate circumstance cause by the applicant`s unjustified anticipation that the postponement was foregone conclusion.

[23] The Second respondent raised a point in limine pertaining to the attestation of the founding affidavit. In the founding affidavit the 9

Applicant refers to himself as a “major male person”. The Commissioner of Oaths however certified the founding affidavit as follows:

“I certify that this affidavit was signed and sworn before me at TIERPOORT on the 30th day of March 2021 by the Defendant, who has acknowledged that she knows and understands the contents of this affidavit, that she has no objection to taking the oath and considers the oath binding on his conscience.”

[24] It was submitted by Mr Van Rhyn SC that the variance in gender reference calls for the conclusion that the oath was conducted in the absence of the deponent. The attestation is thus defective due to the non-compliance with the provisions of Regulation 3(1) promulgated under of the Justice of the Peace and Commissioners of Oath Act 16 of 1963 which require that the attestation by the Commissioner of Oaths should be done in the presence of the deponent. He referred to ABSA Bank Limited v Botha N.O. and Others3 to support his submission.

[25] I agree with the submission made by Mr Van Rhyn SC. The Absa Bank supra matter dealt with an affidavit in respect of summary judgement which forms the cornerstone of the application. The founding affidavit in this matter is of equal importance, particularly because the Applicant approached the Court on an ex parte basis. The Respondents did not then have opportunity scrutinise affidavit. It

3 ABSA Bank Limited v Botha N.O. and Others 2013 (5) SA 563 (NGHCP) 10

was obligatory for the Applicant to ensure that his founding affidavit was compliant with law.

[26] A further aspect that, in my view lends credence to the conclusion that the attestation was done in the absence of the deponent is the fact that the affidavit appears to have been attested to at Tierpoort, the place of the auction, by a Commissioner of Oaths that ordinarily resides at some 150km away. The deponent ordinarily resides near Venterstad. It implies, the unlikelihood, that both must have travelled a distance in excess 150km to the place of attestation whilst they reside less than 40km (distance from Gariep Dam to Venterstad) from each other.

[27] What makes matters worse for the Applicant is that the Second Respondent raise the attestation as point in limine in his answering affidavit but the Applicant elected to do nothing to correct it. Only on the day of hearing counsel indicated that they obtained a statement from the commissioner that day and wanted to hand it up from the bar. This, yet another attempted irregular conduct. The application stands to be dismissed on this aspect alone.

[28] The parties however argued on other aspects which I deem necessary to attend to. In his opposing affidavit the Second Respondent referred to the fact of non-joinder of Jacobus Nicolaas Coetzer and Quad Ostrich Farming (Pty) Ltd. Considering these were the parties to the order of 14 October 2021 under case number 3052/2020 permitting the auction of 25 February 2021 to be held, both these parties had an interest in the matter which should have 11

been fully placed before the court in the ex parte application as their interest involves the disputed ownership of the cattle.

[29] The Applicant was provided with the names of the purchasers of the cattle by the Second respondent which should have alerted him to the fact that there was a misjoinder of the Third Respondent as he was not a purchaser but Kopetca (Pty) Ltd, a separate legal entity, purchased the cattle in possession of the Third Respondent. He opted not to join Kopetca (Pty) Ltd and continued to pursue remedies against Third Respondent. This is cause for the dismissal of the claim against the Third Respondent.

[30] The Applicant relies on the Agreement that was signed on 26 March 2019 to establish his ownership of the cattle sold at auction. Except for averring delivery of the cattle to the First Respondent at Bekerfontein, the Applicant is silent on all other aspects of his expected performance in terms of the agreement. He does not inform on whether he ever visited Bekerfontein to see to the well-being of his cattle or whether the cattle were still there. These aspects are important for substantiating of his claim of ownership. He does not inform the Court that he had not been in possession of the cattle for almost two years prior to the auction. He did not and could not enlighten the court on what was left of his heard prior to the auction.

[31] A Notarial bond was registered over the property of Quad Ostrich Farming(Pty) Ltd on 12 September 2018. At the time of registration it was recorded that there were 57 Bonsmara Commercial cows and 16 Bonsmara Commercial calves. When the Court under case number 12

3052/2020 perfected the property, the sheriff attached 53 Bonsmara cows and 24 calves which the applicant cannot with certainty say was his because he was never there. In any event Jacobus Nicolaas Coetzer obtained a real right in the property perfected in terms of the Court Order. That order still stands. He was thus entitled to sell the property at auction.

[32] In Menqa and Another v Markom And Others4 the court confirmed ownership obtained through a sale in execution of a valid court order cannot be interfered with unless it is found that the order authorising the sale was invalid. In this matter it was neither alleged nor can it be said that the order under case number 3052/2020 was defective or invalid. The purchasers from the auction are thus entitled to retain the property they lawfully bought.

[33] When the Applicant obtained knowledge of the court order and sale in execution he should have known that there would be a dispute of fact pertaining to ownership. More so because Quad Ostrich Farming (Pty) Ltd on two occasions prior to the auction, confirmed ownership of all the property on the farm which included the cattle. Furthermore, he failed to establish from the First Respondent, who should have been the first port of call considering the terms of their “agreement”, how it came about that his cattle were sold. The Applicant could not seek final relief when there is a clear dispute of facts in regards the ownership of the cattle.5 Absent undisputed ownership the applicant cannot rely on the rei vindicatio in the manner that he attempted to do

4 Menqa and Another v Markom and Others 2008 (2) SA 120 (SCA) 5 Administrator of Transvaal and others v Theletsane and Another 1991(2) SA 192 (AD) 13

[34] Consequently the application stands to be dismissed and the interim order dated 30 March 2021 should be set aside.

[35] The parties argued costs. The Applicant concedes that cost should follow the result of the application. The Respondents request a punitive costs order because in their view the Applicant launched an application which he was never entitled to do. Further the applicant deliberately attempted to delay the hearing of the application by bringing an unfounded application for postponement on the 11th hour after failing to comply with the rule by not filing a replying affidavit nor filing heads of argument.

[36] I agree with Respondents that the Applicant`s conduct in these proceeding was reprehensible to say the least. In as far as the application for postponement, I deem it necessary to grant a punitive order because this is where the mischief of the applicant is most evident as highlight above. In consequence the following order in made:

It is ordered that

1. The application is dismissed.

2. The interim order granted on 30 March 2021 under the above case number is set aside.

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3. The Third Respondent`s possession of the cattle, removed from the Farm Bulfontein, District of Reddersburg, shall be restored on or before 16 June 2021 at the costs and expense of the Applicant.

4. Costs in respect of the application for postponement on 27 May 2021 is awarded to the Second and Third respondent respectively on attorney-and-own client scale. 5. Costs in respect of the main application, which costs shall exclude that referred to in order 4, is awarded to the Second and Third respondent respectively on a party and party scale.

______CNEKOSIE, AJ For the Applicant: Adv J Ferreira Instructed by: Bezuidenhouts Inc Bloemfontein

For the Second Respondent : Adv AJR Van Rhyn SC Instructed by: Lovius Block Attorneys BLOEMFONTEIN

For the Third Respondent : Adv W Edeling SC Instructed by: Lovius Block Attorneys BLOEMFONTEIN