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[2010] ZAGPPHC 206
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Firstrand Bank Limited Trading as Wesbank v Toitjie Du Toit Trust (29568/09) [2010] ZAGPPHC 206 (30 November 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
DATE:
30 November 2010
CASE
NO: 29568/09
In
the matter between:
FIRSTRAND
BANK LIMITED trading as WESBANK
…...........................
RESPONDENT/
…
...........................................................................................................................
APPLICANT
IN MAIN
vs
TOITJIE
DU TOIT TRUST (REG.NO. IT 11801/98)
…................................
APPLICANT/
…
..........................................................................................................................
RESPONDENT
IN MAIN
JUDGMENT
BOTHA
J:
The
applicant, the Toitjie du Toit Trust (the Trust), is the respondent
in a sequestration brought against it by the respondent,
First Rand
Bank Ltd trading as Wesbank (the Bank).
The
main application is opposed. The Bank's case against the Trust is
based on deeds of suretyship that the trust signed in respect
of the
indebtedness of companies in the du Toit Motor Group.
The
Trust alleges that the quantum of the Bank's claim is suspect because
of the occurrence of incorrect interest charges. It alleges
that it
has obtained the services of an expert, Mr Whelpton, to calculate
whether the correct charges were in fact levied.
The
examples of incorrect calculation that are mentioned in paragraph 67
of the answering affidavit in the main application were
discussed
with Mr Whelpton. Mr Whelpton expressed the opinion that in his
experience an investigation invariably yields the result
that over a
long period of time a creditor makes mistakes with finance charges,
mostly to the detriment of the debtor. In Mr Whelpton's
view the
mistakes justify a comprehensive investigation of the transactions of
the principal debtors. To that end complete statements
of account of
all the principal debts are required in respect of all vehicles sold.
In addition all documents issued between the
Bank and the Toits Motor
Group are required.
It
is alleged that there is a reasonable likelihood that the errors
revealed will be of such an extent that it will wipe out the
Bank's
claim, or significantly reduce it.
The
Bank resisted the application. It pointed out that the relationship
between the parties had been an ongoing one and that this
kind of
documentation had never been asked before. It made the point that Mr
A.J du Toit, whom it described as the operating mind
the Trust, had
never before had reason to question the Bank's accounts. It alleged
that such disputes as existed related to interest
free periods. Those
disputes were resolved in 2006.
It
contended that the Trust could obtain the documents it required
through the entities controlled by it.
In
the replying affidavit the Trust pointed out that the entities
controlled by it have been liquidated. The liquidators did not
respond to requests to make documents available.
It
also pointed out that Mr du Toit only became the controlling mind of
the main debtors about a year before their liquidation.
Mr
van Der Merwe, who appeared for the Trust, referred to paragraph 67
of the preliminary opposing affidavit in the main application
where
instances of incorrect interest charges were cited. He pointed out
that they went beyond 2006.
He
submitted that:
(a)
it
must be accepted that the Trust could not obtain the documents from
the companies in liquidation;
(b)
that
it was not disputed that incorrect interest charges were levied;
(c)
that
the Trust needed the documentation requested to prove that the Bank's
claim was inflated.
He
submitted that if the Bank had resorted to the procedure of issuing
summons to assert its claim, the Trust would have had the
right to
insist on discovery.
Mr
Carstensen, who appeared for the Bank, submitted that discovery in
application proceedings is a rare and unusual phenomenon,
only to be
ordered in exceptional circumstances. He referred to
Saunders
Valve Co Ltd v lnsam Co (Pty) ltd
1985 (1) SA 146
(T) at 149, Moulded
Components and Rotomoulding
SA
(Pty) Ltd v Coucouraks 1979(2) SA 457 (w) at 470 D
and
Premier
Freight (Pty) Ltd v Breathetex Corporation (Pty) Ltd
2003 (6) SA 190
(SE) at 196-197.
In
my view the Trust has failed to prove that there are exceptional
circumstances compelling the court to order discovery in this
case.
If
all is told what the Trust asks the court to allow, is nothing but a
fishing expedition.
It
appears that the total potential liability of the Trust is about
R22
million.
No particulars of the assets and liability of the Trust are given so
as to enable the court to assess what reduction of
the Bank's claim
would bring it within the Trust's solvency margin.
The
allegation that the investigation by Mr Whelpton might yield a result
that might extinguish or significantly reduce the Bank's
claim is
vague and unsubstantiated. It is mere speculation. There was no
attempt to illustrate it by means of an example based
on such
information as is at the disposal of the Trust, what the impact of
incorrect interest charges could be.
The
Trust is faced with a claim of
R22
million.
There is no basis for the court to accept that the extensive
investigation envisaged by the Trust will yield a result that
will
avert the Bank's entitlement to an order of sequestration.
In
the result the application cannot succeed.
It
is dismissed with costs.
C.
BOTHA
JUDGE
OF THE HIGH COURT