SA citizens denied right to buy land
Mpho Mokwape | Thursday November 5, 2015 15:35
The Court of Appeal recently dismissed Charel Lee Smit and his son, trading under a company called Kundanika Investments, after seeking an interpretation of the Land Control Act (LCA). This followed their failed bid to purchase an agricultural farm.
They had also sought to be given a clarification in particular when and when not prepublication and the consent of the minister was required for a sale of agricultural land.
Lee Smit and his son had wanted to purchase the farm from the Bruwer brothers after leasing it since October 2007 without any success. They had launched a series of legal suits against the brothers arguing that they had an agreement for either a purchase or renewal of the lease. Their contention was that the minister’s consent and prepublication was not necessary in their proposed purchase.
Justice Ian Kirby dismissed the application saying the LCA passed by Parliament in 1972 was clear that any renewal of a lease for such land required a ministerial consent.
“In this case the minister has not given his consent to the transaction and indeed no application for such consent was made within three months of agreement between the parties,” he said.
He explained that if the purchaser was a citizen company then neither prepublication nor the consent of a minister was required for a purchase.
Kirby said any renewal of a lease agreement or any option to purchase would be unlawful as being in breach of the LCA.
“Kundanika Investments is not a citizen of Botswana as its shares are owned by non citizens so any such would be in breach of the LCA,” he said.
He said the trial court was right in finding that in the absence of evidence regarding the option to renew the lease and no valid ministerial consent availed, any reliefs sought could not be granted.
Meanwhile the farm in question reportedly measuring around 11,800 hectares belonged to the late parents of the four brothers who inherited it.
According to court documents, the late Phillipus Wilhelm Bruwer was the registered owner of the farm before passing it to his wife who also died in 2001.
Their four sons, Stephanus (now deceased), Petrus and Marthinus took control of the farm under the formation of a company called Bruwer Brothers and were to hold equal shares.
Then the brothers in February 2007 concluded an agreement of a lease with Lee Smit and his son and on October 2007 both executed an agreement to the lease in terms of which Lee Smit was granted the right to sublet the farm and pass its rights under the lease to any third party.
“However the rights have not been ceded, nor the option to renew the lease ever been exercised. That option lapsed on May 31, 2012 and on November 2007 a second agreement was entered into and the appellant was granted an option to purchase the farm at a price of P800 per hectare, which was to be exercised in writing before 12pm on July 1, 2010,” read the documents.
The documents further indicated that a letter of option to purchase the farm was written to the brothers on June 25, 2010 but nothing materialised until the appellant sought to take the matter further triggering a series of legal battles between the two parties.