Minister of Land Affairs and Agriculture v D & F Wevell Trust

The D & F Wevell Trust and the Clarke family (applicants in the court a quo/respondents in the SCA) entered into written sale agreements in 2003 with the Department of Land Affairs (respondents in the court a quo/applicants in the SCA) to sell farms in the Badplaas area to the Ndwandwa Community Trust pursuant to land restitution. The Minister approved the sales in April 2004 and letters of intent were issued. On 10 September 2004, just before registration was to occur, the Chief Land Claims Commissioner instructed withdrawal of transfer documents, citing an ongoing investigation (to be completed within three weeks). The investigation was never completed within the stated timeframe. After repeated correspondence and warnings, the sellers brought applications in December 2004 seeking orders compelling registration and payment of the purchase prices. The Department opposed on grounds of suspected fraud, alleging irregularities in valuations by valuer Roux and connections to one Visagie who allegedly bribed valuers. The Land Claims Court granted the order on 26 July 2005, finding no evidence of fraud by the applicants. The Department's application for leave to appeal was filed nearly a month late and refused on 6 December 2005. The Department then sought leave to appeal to the SCA.

• What are the requirements for granting condonation for late filing of a notice of appeal?
• When is a respondent in motion proceedings entitled to have a matter referred to oral evidence or trial where unable to produce affidavits deposing to a defense?
• What constitutes a bona fide dispute of fact in motion proceedings?
• When should hearsay evidence be admitted and what weight should be given to it in motion proceedings in the Land Claims Court?
• What are the limits of the power of the Chief Land Claims Commissioner and Minister to suspend performance of approved sale agreements?

Application for leave to appeal dismissed with costs, including costs of two counsel where employed. The applicants (government) were ordered to pay costs of various interlocutory applications, some on an attorney-client scale.

Where a respondent in motion proceedings seeks a referral to oral evidence or trial because unable to produce affidavits deposing to a defense, the respondent must: (1) set out in the answering affidavit the import of the evidence which it proposes to elicit through cross-examination or subpoena; (2) explain why such evidence is not available in affidavit form; and (3) most importantly, satisfy the court that there are reasonable grounds for believing that the defense would be established if the matter is referred for oral evidence or to trial. A bare denial or unsubstantiated allegations, particularly those based on inadmissible hearsay, do not create a genuine dispute of fact warranting such referral. A respondent cannot use a referral to oral evidence to make up shortcomings in its own case or to conduct a fishing expedition. In motion proceedings, affidavits constitute both the pleadings and the evidence, and a party cannot rely on passages in lengthy annexures not specifically addressed in the affidavits to make out a case, as this would constitute trial by ambush.

The Court observed that the respondents should have applied for an interim interdict to prevent transfer pending completion of investigations, coupled with an undertaking to pay interest if no irregularities were found, rather than unilaterally instructing withdrawal of documents from the Deeds Office. The Court noted that neither the Chief Land Claims Commissioner nor the Minister had any entitlement to unilaterally stop performance of contracts of sale. The Court also commented that valuations of the same property made by different honest and competent valuers can be far apart, as valuation is essentially a matter of estimation and conjecture. The Court expressed approval of the trial court's expertise in expropriation litigation and its assessment of the competing valuations. Regarding the use of the phrase 'balance of convenience' in the context of opposing substantive performance of a contract (rather than in an interdict application), the Court remarked that this was 'entirely inappropriate'.

This case is significant for establishing the requirements that must be satisfied in motion proceedings where a respondent, unable to deliver affidavits deposing to a defense, requests a referral to oral evidence or trial. It clarifies that such referrals are available in limited circumstances but requires the respondent to demonstrate reasonable grounds for believing the defense would be established. The judgment also provides important guidance on: (1) the approach to hearsay evidence in motion proceedings; (2) the principle that affidavits constitute both pleadings and evidence in motion proceedings; (3) the finality principle in relation to condonation applications; and (4) the limits of executive power to suspend performance of concluded contracts in the land restitution context. The case demonstrates the court's determination to prevent abuse of process through delay tactics and unsubstantiated allegations, particularly where public funds are involved.