22 June 2021 by Dispute Resolution Alert

The value of careful analysis

Lawyers often write letters in which they demand that stuff is done, often by a deadline, usually in formal legal language designed to scare the recipient and ended with threats of legal action. It is often successful, but lawyers don’t have any general authority to set deadlines or make demands and they rely on people giving up their power to resist. A lawyer only has actual authority because on the facts of the case their client has authority in law. The point is that the legitimacy of demands and deadlines and the potential success of threatened legal action should be carefully scrutinised before rights are given up and demands obeyed. Author Alice Walker said it very well. “The most common way people give up their power is by thinking they don’t have any.”

This was illustrated in a dispute that arose in the North West Province where portions of some maize and sunflower farms were sold subject to suspensive conditions (Bisschoff & Others v Welbeplan Boerdery (Pty) Ltd (Case No. 815/2016) [2021] ZASCA 81). Pending finalisation of the sale it was agreed that the purchaser could access the farms and if the sale fell apart, the agreement would automatically convert to a 12-month lease. The suspensive conditions weren’t fulfilled, the sale collapsed, and the sale agreements duly converted to leases. The purchaser then breached the leases and received letters from the sellers’ attorney confirming that the agreements had been cancelled and telling it not to trespass on the land. The purchaser complained to the High Court that the lawyer’s letters were an act of spoliation which prevented it from accessing the land without any court process. The High Court agreed saying that the words used in the lawyer’s letters were equal “to putting a lock at the gate physically”.

The Supreme Court of Appeal analysed the letters and pointed out that the application in the High Court was for a mandament van spolie, for the return of possession of property where the applicant was unlawfully deprived of its prior peaceful and undisturbed possession. The court said there must be an actual loss of possession, that the mere threat to approach a court in the circumstances of this case could not constitute unlawful deprivation of the purchaser’s control of the land, nor self-help and the High Court should not have to granted the order that it did.

A sensible conclusion.

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