NORTH GAUTENG HIGH COURT 
PRETORIA
 (REPUBLIC OF SOUTH AFRICA)
Case no: 58258/2013
Date: 7 July 2014
Reportable
Of Interest to other judges
In the matter between:
BUFFELSDRIFT GAME RESERVE.......................................................................................APPLICANTS
OWNERS’ ASSOCIATION
AND
GRAHAM KEITH HOLKOM.....................................................................................FIRST RESPONDENT
THE TRUSTEES FOR THE TIME BEING.........................................................SECOND RESPONDENT
OF THE JAHN DEL TRUST
ROGER BRYAN FERNEYHOUGH AND
MARGARET PARR KATHRYN FERNEYHOUGH..............................................THIRD RESPONDENT 
ADRIAAN BRUWER AND.......................................................................................FOURTH REPONDENT
NICOLETTE VAN WYK
PIERRE JEAN DU PLESSIS.......................................................................................FIFTH RESPONDENT
THE TRUSTEES FOR THE TIME...........................................................................SIXTH RESPONDENT
BEING OF THE LONECREEK TRUST
Coram: Baqwa J 
Heard: 5 June 2014 
Delivered: 7 July 2014
JUDGMENT
BAQWA J
Summary: Applicant sought relief in the form of a final interdict against the respondents regarding the ownership of dogs and cats. Issue for determination: whether applicant waived its right to enforce a clause in its constitution regarding ownership of pets.
Held, that the applicant had waived its rights.
Held, application dismissed with costs.
Annotations
Case law
Plascon-Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd 1984(3) SA 623(A) 
Manola and Others v Kay Eddie NO and Others 1995(2)SA 728(W) at 731 C-F
Standard Bank of South Africa Limited v The Trustees for the time being of Kairos Investment Trust an unreported decision case number 23270/2009 Western Cape High Court
Botha v White 2004(3) SA 184 T
North Vaal Mineral Co Ltd v Lovasz 1961(3) SA 604(T) at 608 B-H
Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another 2009(4) SA 529
Laws v Rutherford 1924 A.D 261 at 263
Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty of South Africa and Another Intervening) 2001 (3) SA 893 (CC) 2001 (7) BCLR 685; [2001] ZACC 18 at paragraph 19
Van As v Du Preez 1981 (3) SA 760 T
Union Free State Mining and Finance Corp Ltd v Union Free State Gold and Diamond Corp Ltd 1960(4) SA 547 (W)
Mears v African Platinum Mines Ltd 1922 (1) WLD 48
Miller v Spamer 1948(3) SA 772 C
Botha v White 2004(3) SA 184(T) paragraph 31
North Vaal Mineral Co Ltd v Lovasz 1961 (3) SA 604 (T) at 608B-H
Potgieterv Van de Merwe 1949(1) SA 361
Govender v Textile Workers Industrial Union (SA) Durban Branch 1961(3) SA 88(D) at 91 F-G
New Media Publishing (Pty) Ltd v Eating Out Web Services 2005(5) SA 388(C)
Ex parte United Party Club 1930 WLD 277 Saunders v Committee of Johannesburg Stock Exchange 1914 WLD 112 at 115
President Verskeringsmaatskappy Bpk v Trust Bank Van Africa Bpk 1089(1) SA 208
[1] The applicant is a Home Owners Association that seeks an order against some of its members who are in contravention of a clause in the applicant’s constitution by keeping cats and dogs prohibited in terms of the constitution. The applicant seeks that they be ordered to permanently remove such cats and dogs from the property.
[2] Applicant further seeks an order in terms of which it is authorised to take steps necessary to have such cats and dogs permanently removed and given into the care of a veterinarian or animal shelter should the respective respondents not adhere to an order directing them to remove such animals.
[3] Background
3.1.The Buffelsdrift Game Reserve is a private property development which has been developed by Buffelsdrift Wild en Natuurreserwat (Pty) Ltd.
3.2. Stands were sold in the reserve by the developer to various purchasers such as the respondents or to the original owners who transferred their property to the respondents. The developer and all the original purchasers had entered into a sale of land agreement with the developer.
3.3. The agreement entered into between the developer and the original purchasers of the portions currently registered in the names of the various respondents is captured in substantially the same terms.
3.4. In terms of clause 5.1 the purchaser acknowledged that upon registration of transfer, such purchaser would become a member of the applicant subject to its constitution.
3.5. Any owner is obliged upon sale of the property to inform any purchaser of a property in the reserve that membership of the applicant is compulsory.
[4] In casu, the respondents have not disputed the fact that they are members of applicant whether they are the original or subsequent purchaser of the relevant portion of the property.
[5] Applicant’s constitution
5.1. Section 5.4 of the applicant’s constitution provides as follows:
‘’...Except within approved ecosystems no animals or birds are kept in captivity and no animals or birds or the property may be removed without the approval of the committee. Dogs, but no cats or other domestic animals, may in a portion be detained subject to the approval of the committee, and further provided that the keeping of such dog associated with facial or other disability of the owner or a resident relative of the owner. ”
3.4. Further, section 27 states "The committee shall have the power:
27.1. To apply all the rules of the Association and take practical steps to achieve this goal without restrictive measures in place that are not explicitly contained in the Association’s rules. ”
5.2. As can be seen from reading of this clause the constitution prohibits the keeping of domestic cats and dogs but provides that an owner may seek consent of the applicant’s management committee and the management committee may give consent to an owner in special circumstances. These were intended to provide for approval of guide dogs for the blind or visually impaired.
[6] Applicant states that the respondents had been requested in writing to adhere to the provisions of clause 5.4 of the constitution and that they remain in contravention of that clause in that they keep one or more dogs or cats on the property without the consent of the management committee.
[7] The law
7.1. The applicant is applying for a final interdict against the respondents. For a final interdict to be granted, the test is as follows:
Whether the facts averred by the applicant and admitted by the respondent, together with the facts alleged by the respondent justify the relief sought.
Plascon-Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd 1984(3) SA 623(A)
7.2. The applicant also has to prove a clear right as a basis for the relief sought. It must also prove the commission of an injury against it and that it has no other remedy available to it to obtain relief.
7.3. Trusts
7.3.1. A trust is a legal personal but acts through its trustees nomine officii
See Manola and Others v Kay Eddie NO and Others 1995(2) SA 728(W) at 731 C-F.
"a trust is not a persona but a legal institution, sui generis. The assets and liabilities of a trust vest in the trustee or trustees. The trustee is the owner of the trust property for purposes of administration, but qua trustee he has no beneficial interest therein..... unless one of the trustees is authorised by the
remaining trustee or trustees, all the trustees must be joined in suing and all must be joined when action is instituted against a trust. In legal proceedings trustee must act nomine officii and cannot act in their private capacities. ”
7.3.2. In Honores South African Law of Trusts 5th Edition by Cameron and De Waal at page 420 the following is said:
‘’In legal proceedings the trustees must act nomine officii and cannot act in their private capacities. It is unusual for the trustees to be cited as A, B and C in their capacity as trustees of the XYZ Trust but cases in which the trust as such is cited are not unknown and there should be no objection to a citation of ‘the trustees for the time being of the XYZ Trust. ”
7.3.3. In a decision of Meer J in Standard Bank of South Africa Limited v The Trustees for the time being of Kairos Investment Trust an unreported decision case number 23270/2009 Western Cape High Court the Court stated:
"If cases cited in the name of a trust which has no legal persona are accepted, I cannot find any legal reason, nor was I provided with any as to why a case against the trustees for the time being such as at present, cannot be accepted, especially where it is not disputed that the assets of the trust vest in the trustees nor that the identities of the trustees are unknown or that there is confusion as to who they are. It would seem to me in the circumstances that the opposition is not well-founded and smacks of unnecessary formalism. ”
[8] Waiver
One of the defences raised by the respondents is that the applicant has waived its rights to enforce the constitution. In Botha v White 2004(3) SA 184 T Patel J stated:
‘’[31] The doctrine of acquiescence is competent to halt cases where its application is necessary to attain just and equitable results. The test for inferred acquiescence is the impression created by the plaintiff or applicant on the defendant or respondent. It can be proved by some act, conduct or circumstances on the part of the plaintiff or applicant, for example, by the applicant’s delay in taking action, so that the respondent is lulled into a false sense of security. Then is such circumstances, the enforcement of a right would cause inequity and the applicant’s conduct would amount to unconscionable conduct.
See North Vaal Mineral Co Ltd v Lovasz 1961(3) SA 604(T) at 608 B-H
[32] In my judgment, there are a number of factual circumstances in this matter which do not compel me to grant the final interdict because of the applicant’s unconscionable conduct.
(a) First, the applicant, from March 1998 until May 2001, watched the respondent conducting her business and took no steps to prevent it.
(b) Secondly, although he may not have thought it mattered all that much prior to May 2001, during which time he continued to patronise her business, as well as purchase goods from her on credit, he thereby condoned the breach on her part of the condition of her deed of transfer, as well as acquiesced in her continuing to trade without any objection or hindrance.
(c) Thirdly, he was aware that she obtained three licences from the Gauteng Liquor Board to sell sorghum beer and all kinds of liquor and to run an eating house. He neither objected nor did he apply for an interim interdict to restrain her from doing so.
(d) Fourthly, when he either realised or had a suspicion that she was trading in breach of the condition contained in the deed of transfer, he remained silent for a long time.
(e) Fifthly, he complained to the police during March 2012.
(f) Sixthly, for a period of over four years, the applicant did not seek any legal recourse to prevent the respondent’s conducting a business from her holding, in breach of her deed of transfer condition and, over that period, it is a fair assumption that (1) the respondent surely must have spent a considerable amount of money in obtaining the three licences, as well as in engaging the professional services of Johan Van Der Merwe for the application for rezoning of her holding; (3) there was no objection from the other holders of plots on the agricultural holdings.
(g) Last, her application for rezoning is pending before the relevant authorities.
[33] Under the circumstances, the applicant, by his conduct, acquiesced in the respondent’s operating a business from her holding. It is unconscionable for the applicant, after four years, to apply for a final interdict to stop the respondent from trading. I, therefore, find, on accepting the facts deposed to by the respondent, together only with such facts in the applicant’s affidavit which cannot be disputed, that the applicant is precluded from procuring a final interdict. ”
8.2. The test for waiver was also pronounced upon by the Constitutional Court in the matter of Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another 2009(4) SA 529 paragraph 81 as follows:
‘’[81] The conclusion reached in paragraph [79] above is in accordance with the common law principles regarding waiver of rights. Waiver is first and foremost a matter of intention; the test to determine intention to waive is objective, the alleged intention being judged by its outward manifestations adjudicated from the perspective of the other party, as a reasonable person. Our Courts take cognisance of the fact that persons do not as a rule lightly abandon their rights. Waiver is not presumed; it must be alleged and proved; not only must the acts allegedly constituting the waiver be shown to have occurred, but it must also appear clearly and unequivocally from those facts or otherwise that there was an intention to waive. The onus is strictly on the party asserting waiver; it must be shown that the other party with full knowledge of the right decided to abandon it, whether expressly or by conduct plainly inconsistent with the intention to enforce it. Waiver is a question of fact and it is difficult to establish. ”
Laws v Rutherford 1924 A.D 261 at 263
Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty of South Africa and Another Intervening) 2001 (3) SA 893 (CC) 2001 (7) BCLR 685; [2001] ZACC 18 at paragraph 19
8.3. Even though a contract cannot be amended because of a non-variation clause, a party may waive any right flowing from that contract
Van As v Du Preez 1981 (3) SA 760 T
8.4. It is not necessary for a party against whom the waiver is being exercised to have accepted the waiver before the waiver is complete as mere reliance on a waiver implies an acceptance thereof.
Union Free State Mining and Finance Corp Ltd v Union Free State Gold and Diamond Corp Ltd 1960(4) SA 547 (W)
[9] Issues to be decided
9.1. It is common cause that the respondents are members of the applicant and as such ought to be bound by the applicant’s constitution.
9.2. The Court needs to consider whether applicant has met the requirements of the relief it seeks against the respondents, namely, a final interdict.
9.3. The main question to be determined, therefore is whether taking into account, the terms of the agreement they had entered into when purchasing their respective properties and the clauses in applicant’s constitution, applicant had waived its right to enforce the terms of clause 5.4 of the said constitution.
[10] Application of the law to the facts
10.1. Opposing affidavits were filed by the second, fifth and sixth respondents. Third respondent did not deliver an answering affidavit whilst first respondent had the animals which were brought into the property euthanized and the application against first respondent had been withdrawn.
10.2. Clear right
Applicant seeks relief in the form of a final interdict against he respondents and in my view, the constitution empowers the applicant in clause 27.1 ‘’to apply all the rules of the association and take practical steps to achieve this goal without restrictive measures in place that are not explicitly contained in the association’s rules.” Moreover, the terms of clause 5.4 (supra) are explicit regarding the prohibition of dogs and cats on the reserve. Applicant has therefore demonstrated a clear right to institute the present action against the respondents who do not contest or deny being members of the applicant and are therefore bound by the relevant constitutional provisions.
10.3. Injury or harm
10.3.1. The applicant contends that the respective respondents have committed an injury to the applicant and its members by contravening the applicant’s constitution by keeping one or more dogs or cats at the property.
10.3.2. Injury or harm must be understood to mean not only a breach or infraction of the right which has been shown or demonstrated but also prejudice which flowed or resulted from such infraction.
10.3.3. The Court is called upon to decide on the established facts whether there are grounds for the entertainment of a reasonable apprehension of harm or injury by the applicant. The applicant must not merely pay lip service to the requirements by alleging injury without demonstrating the prejudice which has resulted from the breach of the provisions of the applicant’s constitution. The facts grounding its apprehension must be set out to enable the Court to judge for itself whether the fears are indeed well-founded or not.
Mears v African Platinum Mines Ltd 1922 WLD 48
The applicant merely alleges that it is reasonably apprehended that the respective respondents will not remove their dogs and cats without the Court ordering them to do so. This, in my view is not sufficient to enable the applicant to comply with this requirement
10.4. No other remedy
10.4.1. Applicant submits that it does not have an alternative remedy other than the removal of dogs and cats against the respondents. This is denied by the respondents. It is apparent from the documents filed that the issue of dogs and cats had been discussed at various meetings by applicant’s members at which various alternatives were suggested. In the minutes of the Annual General Meeting of 23 February 2013, the deponent to applicant’s current application, the chairman of the applicant, Mr Werner Ras, is captured as follows:
"Dogs and cats may be kept under the stipulated conditions:
Mr Werner Ras mentioned that in principle he does not support having dogs and cats, but suggests that going forward regulations should be stipulated for such pets to be kept. ”
10.4.2. It is thus difficult to comprehend the same deponent stating under oath that there are no alternative remedies available to the applicant when he suggested to the respondents and other members that regulations should be put in place to enable members to keep their pets. It can in the circumstances hardly be said that the applicant has no alternative.
[11] In Miller v Spamer 1948(3) SA 772 C the Court held that it is its duty to weigh one against the other, the respective rights of the applicant and the third party and the damage and inconvenience which may be caused to the one by the refusal and to the other by the granting of an interdict.
[12] Locus standi and authority
12.1. The fifth respondent alleges in limine that clause 27.1 of the applicant’s constitution does not authorise the committee to institute legal proceedings to enforce applicant’s rules and that there is no directive from the applicant which authorises the committee to institute legal proceedings. I have already made reference earlier to the fact that the current action is properly taken in terms of clause 27.1.
12.2. Further, upon a proper reading of applicant’s resolution dated 15 April 2013 and in terms of the wording therein and its ordinary grammatical interpretation, the conclusion I have come to is that the resolution gives proper authority to applicant to institute legal proceedings. It reads as follows:
‘’...Whereas
The association is experiencing certain issues which may require legal intervention and possible court proceedings;
And whereas
The Committee of the Association have agreed to appoint the chairperson Mr Werner Ras to assist in the process of seeking legal advice for the various matters which require attention;
IT IS HEREBY AGREED:
That Mr Werner Ras will represent the Association and be empowered to sign all necessary documentation; letters; affidavits; or any legal document pertaining thereto...”
I do not accept as submitted by fifth respondent’s counsel that the resolution only authorises the seeking of legal advice.
[13] Waiver
13.1. Respondents have also argued that applicant has waived its right to enforce the constitution.
13.2. Whilst the respondents who oppose this application do so on the basis that they do own dogs and/or cats, the facts pertaining to the sixth respondent starkly mirrors the facts that the Court has to consider in order to decide whether there was waiver or not by the applicant.
[14] The sixth respondent has been the registered owner of portion 198 of the game reserve since 1 February 2005 and Mr Brand, one of the Trustees, has been residing thereon since registration. He owned two domestic pets both Jack Russel dogs, the first being Snippie and the second and current companion Frikkie. When he moved to the game reserve in 2005, Snippie moved in with him. Snippie had however become very old and was put down in December 2011. Since 2008, Mr Brand became the owner of his current companion Frikkie. Between 2005 and 2011 Mr Brand was the owner of two domestic pets.
[15] The applicant knew of the existence of Mr Brand’s domestic animals since 1 February 2005. Despite this knowledge, the letter of demand to the respondents requiring adherence to the terms and conditions of the constitution was only sent in May 2013. A period of eight (8) years and three (3) months had elapsed before applicant showed an intention to enforce its constitution. The sixth respondent submits that by its conduct for a period of more that eight years had conveyed an intention inconsistent with the enforcing of any rule preventing members from owning pets.
[16] Applicant disputes the reliance on waiver by the respondents and in support of its submissions relies on the case of President Verskeringsmaatskappy Bpk v Trust Bank Van Africa Bpk 1989(1) SA 208 where the Court stated that a requirement for waiver is that the person who waives, must be fully aware of the right he or she is waiving and must have communicated his or her intention to the other party. The person who relies on the waiver, too must, at the time the waiver was allegedly communicated to him or her, have been aware of the right in question.
[17] Respondents hold a contrary view to the applicant even on this aspect. They rely inter alia on the dictum in the case of New Media Publishing (Pty) Ltd v Eating Out Web Services 2005(5) SA 388(C) in which the Court held that the defence of acquiescence is based on tacit consent and requires proof of an unequivocal indication that the other party by keeping silent accepted and consented to the infringement of its rights. It is not distinguishable from waiver.
[18] The constitution of the the applicant, constitutes a contract between all the members of the applicant with one another and its rules are enforceable by members inter se.
Ex parte United Party Club 1930 WLD 277 Saunders v Committee of Johannesburg Stock Exchange 1914 WLD 112 at 115
Govender v Textile Workers Industrial Union (SA) Durban Branch 1961(3) SA 88(D) at 91 F-G
[19] If a delay in enforcing a right conferred by the terms of a contract has induced a reasonable belief that there is an agreement not to enforce the right, then enforcement has been waived by quasi-mutual assent.
Potgieter v Van de Merwe 1949(1) SA 361
[20] In Laws v Rutherford 1024 AD 261 at 263 Innes CJ held that "The onus is strictly on the appellant. He must show that the respondent, with full knowledge of her right decided to abandon it, whether expressly or by conduct plainly inconsistent with an intention to enforce. ”
[21] When one considers the above, it becomes clear that applicant was aware of its rights in terms of clause 5.4 of the constitution yet failed to take steps to enforce it over a period of time. In the sixth respondent’s case the delay in enforcing its right was longer than eight(8) years.
[22] Waiver by conduct was dealt with also in the case of Botha v White (supra at paragraph 8)
In that case acquiescence was found to be a bar to applicant’s attempt to enforce a right he had omitted to enforce over a period of time. The circumstances in the Botha decision are no different from the present case.
[23] 23.1. In casu, the applicant had observed the respondents for varying periods in excess of four years owning dogs and cats without taking any action against them.
23.2. Applicant had remained silent for a considerable time after realising or suspecting they were owning pets in contravention of clause 5.4 of its constitution.
23.3. In the circumstances applicant had by its conduct acquiesced in the respondents owning pets and dogs thereby waiving its right by its conduct to seek legal recourse to prevent the respondents from doing so.
[24] As far as costs are concerned, I do not accept the submission by the respondents that the applicant’s application was without merit. On the face of it, it could be argued as applicant has, unsuccessfully, to convince the Court that the requirements for a final interdict have been satisfied in light of the provisions of clause 5.4 of applicant’s constitution. The applicant is represented by its Committee which was elected by amongst others by the respondents. The costs have been incurred by the Committee members acting in their official capacities. It would therefore be inappropriate in the circumstances to make an order against the management Committee members in their personal capacity. It has not been suggested not has it been proved that they had been mala fide in bringing an application against the respondents.
[25] In summary, I find:
25.1. That the applicant, by its conduct, acquiesced in the respondents’ owning of dogs and cats on the Buffelsdrift Game Reserve property.
25.2. It is unconscionable for the applicant after a period of more than four years, to apply for a final interdict to stop the respondents from owning such pets.
[26] I therefore find, on accepting the facts deposed to by the respondents together with such facts in the applicant’s affidavit which cannot be disputed, that the applicant is precluded from procuring a final interdict.
[27] In the result, the applicant is not entitled to the relief sought in respect of the alleged breach of clause 5.4 of the constitution by the respondents. Accordingly, I make the following order:
The application is dismissed with costs.
S.A.M. BAQWA 
(JUDGE OF THE HIGH COURT)
Counsel for the Applicant: Adv J.H Mollentze
Instructed by: Biccari Bollo Mariano Incorporated
Counsel for the second respondent: Adv E Van As
Instructed by: Len Dekker and Associates
Counsel for the third respondent: Unknown
Instructed by: Wiekus Du Toit Attorneys
Counsel for the fourth respondent: Unknown
Instructed by: Adriaan and Nicolette Bruwer (Nee’ Van Wyk)
Counsel for the fifth respondent: Adv DB Du Preez SC
Instructed by: Ross and Jacobsz Incorporated
Counsel for the sixth respondent: Adv C Prinsloo
Instructed by: PJ Faure Incorporated