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[2019] ZAGPJHC 364
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First Rand Bank Limited v Trustees for the Time Being of the Goran Family Trust and Others (24597/2017) [2019] ZAGPJHC 364 (23 August 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 24597/2017
In
the matter between:
FIRST
RAND BANK LIMITED
APPLICANT
and
THE
TRUSTEES FOR THE TIME-BEING OF THE
GORAN FAMILY
TRUST
(IT3206/1993)
JOHANNES
JACOBUS BADENHORST, NO
FIRST
RESPONDENT
QUINTON
ROWAN O’NEAL, NO
SECOND
RESPONDENT
JUDGMENT
DREYER
AJ
:
[1]
This is an
application for a money judgment in the sum of R793 330,63,
together with accrued interest from 1 July
2017 to date of
payment, and an order that the immovable property, Erf […],
Randpark Rif Ext. 45 Township, Registration
Division IQ, Province of
Gauteng, situate at […] Street, Randpark Ridge Ext. 45, be
declared specially executable.
[2]
In the course
of August 1999, Saambou National Building Society (“Saambou”)
entered into a written loan agreement (“the
first loan
agreement”), with the duly authorised then trustee of the Goran
Family Trust (“the Trust”), and loaned
and advanced the
sum of R387 000,00 to the Trust, together with an additional
amount of R77 400,00, as continuing further
security. It
was a suspensive condition of the grant of the loan that a first
mortgage bond would be registered over the
property. This was
effected on 9 September 1999.
[3]
A further loan
agreement was concluded between Saambou and the duly authorised
representative of
the
Trust on 1 November 1999 for the sum of R207 000,00, which
second loan was to be secured by a second mortgage bond
registered
over the property. The second mortgage bond was registered on
11 November 1999.
[4]
These facts
are common cause
[5]
The Applicant
(“First Rand”) pleads that it “
was
deemed to have entered into the first loan agreement with the trust
in terms of section 54(3)(c) of the Banks Act, 94 of 1999
in that
Saambou changed its name to First Rand Financial Company Limited on
28 August 2006 and whereafter First Rand Bank
Limited, the
Applicant, took transfer of the assets and liabilities of First Rand
Finance Company on 1 March 2009 with the
consent of the Minister
of Finance in terms of Section 54(1) of the Banks Act”
.
It is, similarly, pleaded that First Rand was deemed to have entered
the second loan agreement with the Trust on the same
basis.
[6]
The
Respondents dispute that First Rand has the necessary
locus
stand
to
launch these proceedings as in a prior action instituted before this
Court under case number 8902/2011, (which action has subsequently
been withdrawn), the entity that instituted the action was Secured
Mortgages (Pty) Ltd. In these earlier proceedings, Secured
Mortgages (Pty) Ltd pleaded that Saambou had, an out and out cession,
ceded its rights under the mortgage bond to it.
[7]
In reply,
First Rand states
firstly that the Respondents are confused by the cession of the
mortgage bond, which took place on 14 February
2002, where
rights under the loan and mortgage bonds were ceded to Secured
Mortgages Two (Pty) Ltd; secondly, that Secured Mortgages
Two (Pty)
Ltd, though an independent company, was run as a division of First
Rand; thirdly that on 15 January 2014, the loans
and mortgage
bonds previously held by Secured Mortgages Two (Pty) Ltd, were
ceded to First Rand, who is currently the only
entity entitled to
enforce the rights in terms of the loan agreement and the mortgage
bonds.
[8]
This is the
first time that First Rand contends that there has been a cession, of
the rights under the loan and mortgage bond to
it.
[9]
In argument,
counsel for First Rand brought to my attention that both mortgage
bonds had been endorsed by cessions, which it
was argued was
evidence that a cession had taken place. The first mortgage
bond endorsement is found on p. 42 of the
pages and the second
at p. 67. These endorsements indicate a first cession from
Saambou to Secured Mortgages Two (Pty)
Ltd on 14 February 2002
and a second cession to First Rand Bank Ltd on 15 January 2014.
This, it was argued, was
sufficient evidence of the cession, though
not specifically pleaded and should be accepted by the Court.
[10]
Counsel for
the Respondents argued that First Rand’s case, as pleaded, was
at odds with the endorsement of the mortgage bond
and that this did
not evidence a legal basis, properly pleaded, that a cession of
rights had occurred.
[11]
The
contentions in the founding affidavit are at odds with that in the
replying affidavit. A cause of action founded
on cession
(contended for in the replying affidavit and in argument) is in stark
contrast to one founded on a transfer of assets
and liabilities in
terms of a sale of business (contended for in the founding
affidavit).
[12]
It is trite
that a party relying on a cession must allege and prove the contract
of cession.
[1]
[13]
First Rand has
not pertinently pleaded the cession, nor has it provided proof of the
contract of cession. What First Rand
relies on, is the
consequence of the cession, namely the endorsement of the mortgage
bond, a public document. There is no
evidence apparent in
the affidavits filed of, record of a regular and valid cession, as
required, to sustain a cause of action
reliant on a cession.
[2]
[14]
The
Respondents do not dispute the endorsement; they merely dispute that
the endorsement in and of itself is proof of the cession
to clothe
First Rand with the necessary
locus
standi
.
I agree.
[15]
But for the
question of
locus
standi
of
First Rand, I would have granted First Rand the relief it seeks as
there was no real dispute on the papers in respect
of the
Respondents’ indebtedness to the Applicant. In so far as
the question of executability is concerned, I would
have bound by the
decision of
First
Rand Bank Ltd v Folscher and Another
and similar matters
[3]
that the words “
judgment
debtor”
refers to natural persons only and excludes legal persons and trusts.
The property, would consequently fall to be declared executable.
[16]
In the result,
I make the following order:
1. The
application to strike out is dismissed;
2. The
application is dismissed with costs.
__________________________
C.J. DREYER
Acting Judge
of the High Court of
South
Africa
Gauteng
Local Division
Johannesburg
APPEARANCES
:
Date
of hearing:
21 August 2019
Date
of judgment:
23 August 2019
Counsel
for the Applicant:
ADV. B. VAN DER MERWE
Instructed
by:
GLOVER KAPPIEAPPAN INC.
Counsel
for the Respondents:
ADV. NEL
Instructed
by:
J.J. BADENHORST & ASSOCIATES
[1]
Leaf NO v Dettmann
1964(2) SA 252 (A); and
Johnson
v INC General Insurance Ltd
1983(1)
SA 318 (A)
[2]
Hippo Quarries Tvl (Pty) Ltd v
Eardley
1992(1) SA 867 (A), at 873
[3]
2011(4) SA 314 GP