Drakensberg golf estate and lawyers slapped with costs after failed farm grabs

The owners of an upmarket Drakensberg golf and housing estate and their attorneys have been slapped with two punitive costs orders after they managed to grab, for a pittance, three neighbouring farms without the knowledge of their owners.

The shady dealings of Tropical Winter Trading Pty Ltd, which owns the Vulintaba Country Estate outside Newcastle, were exposed twice in court rulings after the owners discovered, by chance, that ownership had been transferred.

In May 2023, Pietermaritzburg high court judge Zaba Nkosi rescinded a previous order transferring the properties to Tropical Winter.

He ordered the company and its lawyers, Kruger Attorneys, to pay punitive costs for “deliberately omitting to disclose material facts” and litigating in a “stealthy and opaque manner”.

This conduct is close, if not equivalent, to acquiring someone’s property through fraudulent means

—  Zaba Nkosi, judge 

Nkosi said this was not mere negligence but a deliberate and conscious attempt to conceal information and mislead the court.           

“This conduct is close, if not equivalent, to acquiring someone’s property through fraudulent means, which cannot and should not be countenanced,” he said, referring his judgment to the Legal Practice Council.

Tropical Winter was not happy and brought an appeal application which came before three KwaZulu-Natal judges earlier this year.

On Friday, judge Rob Mossop dismissed the appeal, and again ordered the company and its attorneys to pay punitive costs.

“This was no comedy of errors,” Mossop said. “It appears to be that their conduct was far more calculated than comedic.”

Detailing the history of the matter, Mossop said Tropical Winter had brought an ex parte (without notice to the other side) urgent application in the high court in June 2019, in which it was granted permission to access one farm, Glen Ashton, to create and maintain fire breaks.

In terms of that interim order, the company had to trace the owners. However, two versions of that order were put before the appeal court. One had been seemingly doctored to reflect that the company was to get a sworn valuation of the property.

When the matter came back to court in December that year, company director and in-house legal adviser Jacobus Lamprecht deposed to an affidavit in which he said the fire breaks had been put in place. He said it was unlikely any of the co-owners whose names appeared on the title deed of the farm were alive because eight of them would be 100 years or older.

Mossop said “at this stage, inexplicably and astoundingly” the application morphed into one in which the company was now seeking ownership not just of the Glen Ashton but also of Twyfelhoek and Moeders Rus, apparently to avoid having to bring similar court applications ahead of the fire season every year.

Lamprecht then proposed a valuator be appointed and the value assigned would be paid into the guardian’s fund for the benefit of any potential owners or heirs.

In February the following year, the company secured an order that it pay R1.2m into the guardian's fund and all three farms be registered in its name.

This order was granted through “deception”, Mossop said.

The company had not, in truth, exhausted all attempts to locate the co-owners, nor did it disclose it was now not only seeking to gain ownership of Glen Ashton but the two other farms which, on its own version, did not border on any of its properties.

Two of the owners, Hendrika Fourie and Karien Kruger, came to know about this by chance.

A representative of Mulilo, a renewal project development company, made inquiries at Vulintaba as to who owned Moeders Rus. She was directed to a local company and, within two days, she had located Karien Kruger.

Kruger, and the other owners, struck a lucrative deal in which the farm could be used for wind turbines. But Mulilo then discovered Moeders Rus was registered in the name of Tropical Winter Trading.

Fourie — who was the only surviving original heir — and Kruger launched the rescission application that was heard by Nkosi.

They said a relative farmed the land up until he died in 2012. After that other relatives had grazed cattle on the three farms and staff lived on site and also kept their own livestock. The family also gathered there at least once a year.

Mossop said in the appeal there had also been a “metamorphosis” in that the company no longer claimed Nkosi had erred in rescinding the order and had conceded he had not erred in directing the retransfer of the three farms to the co-owners.

However, it wanted the original application to be sent back to the court for further affidavits to be filed on the issue of whether the farms had been “abandoned”.

Mossop said this issue had never been raised in the initial application. And, he said, “the obvious question that must be asked is if the [company] truly believed that the three farms had been abandoned, why would any compensation be payable to anyone? Rather than making out a case for abandonment, it appears to me that what [the company] sought and was granted, was a form of private expropriation unknown in our law”.

The company had sought access to one farm to construct firebreaks. On its own admission, it impermissibly went even further and created firebreaks on the other two farms without ever seeking permission. It appeared it had taken the view that it could do as it wished.

He said the application was flawed in its very essence because no attempt had been made to trace the co-owners. This was borne out by the fact that one had, in June 2019, been issued with a gate pass to enter the Vulintabe Estate to access the farms.

Another “unsatisfactory” aspect was that the company claimed the farms had no commercial value when the Newcastle municipality had valued them at more than R7m.

“Such conduct does not occur by chance. It occurs by design and deception,” he said.