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[2023] ZAFSHC 329
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Du Plessis and Others v Majiedt N.O and Others (3059/2021) [2023] ZAFSHC 329 (8 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Application number:
3059/2021
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the
MAIN APPLICATION
between:
TOBIAS
CASPARUS DU PLESSIS
1
st
Applicant
(ID
No: 7[…])
ANNA
CORNELIA JACOMINA DU PLESSIS N.O.
2
nd
Applicant
TOBIAS
CASPARUS DU PLESSIS N.O.
3
rd
Applicant
ANNA
CORNELIA JACOMINA JOUBERT N.O.
4
th
Applicant
(In
their capacity as
Trustees
of the
Tafelkop Boerdery
Trust
,
IT
No: 220[…])
and
DONOVAN
MAJIEDT N.O.
1
st
Respondent
(In
his capacity as
a liquidator
of
Full Circle Projects
Twenty CC
,
Registration
No. 199[…]
[in liquidation]
)
NICKY
DE KLERK
2
nd
Respondent
REGISTRAR
OF DEEDS, BLOEMFONTEIN
3
rd
Respondent
MASTER
OF THE HIGH COURT, MAHIKENG
4
th
Respondent
MASTER
OF THE HIGH COURT, BLOEMFONTEIN
5
th
Respondent
NICOLAAS
DANIËL DE KLERK N.O.
6
th
Respondent
SUSANNA
JOHANNA ELIZABETH DE KLERK N.O.
7
th
Respondent
(In
their capacity as
Trustees
of the
De Klerk Family Trust
,
IT
No. 138[…]
AND
In
the
COUNTER APPLICATION
between:
NICOLAAS
DANIËL DE KLERK N.O.
1
st
Applicant/ 6
th
Respondent
in Main Application
SUSANNA
JOHANNA ELIZABETH DE KLERK N.O.
2
nd
Applicant/ 7
th
Respondent in Main Application
(In
their capacity as
Trustees
of
the
De Klerk Family Trust
,
IT
No. 138[…])
and
TOBIAS
CASPARUS DU PLESSIS
1
st
Respondent/ 1
st
Applicant in Main Application
(ID
No: 7[…])
DONOVAN
MAJIEDT N.O.
2
nd
Respondent/ 1
st
Respondent in Main Application
LINDIWE
FLORENCE KAABA N.O.
3
rd
Respondent
(In
their capacity as
liquidators
of
Full Circle Projects
Twenty
CC
, Registration No. 036[…]
[in
liquidation]
)
GERT
LOUWRENS DE WET N.O.
4
th
Respondent
GONASAGREE
GOVENDER N.O.
5
th
Respondent
(In
their capacity as
provisional trustees
of the
Insolvent
Estate
of
Tobias Casparus
du Plessis
, ID No: 7[…])
CORAM:
VAN ZYL, J
HEARD
ON:
21 APRIL 2023
DELIVERED
ON:
8
AUGUST 2023
[1]
This is an application for leave to appeal by Mr Tobias Casparus du
Plessis (“Mr Du Plessis”),
being the first applicant in
the main application and who was also cited as the first respondent
in the counter-application. Mr
De Koning, assisted by Mr Lubbe,
appeared on behalf of Mr Du Plessis, as they did during the hearing
of the main application and
the counter-application.
[2]
The application for leave
to appeal is being opposed by the first respondent in the main
application and who was also cited as the
second respondent in the
counter-application, Mr Majiedt N.O and the third respondent in the
counter-application, Ms Kaaba N.O,
both of whom are the appointed
liquidators (“the liquidators”) of the liquidated estate
of Full Circle Projects Twenty
CC (“Full Circle”). Mr
Zietsman appeared on their behalf, as he did previously.
[3]
The application for leave to appeal is also being opposed by the
sixth and seventh respondents
in the main application, who are also
the first and second applicants in the counter-application. They are
Mr De Klerk N.O and
Mrs De Klerk N.O in their capacities as the
Trustees of the De Klerk Family Trust (“the De Klerk Family
Trust”). Mr
Pienaar, as previously, again appeared on their
behalf.
[4]
Mr Du Plessis and the second to fourth applicants approached court by
means of the main application
for,
inter alia
, an order in the
following terms:
“
1.
That the time periods described (
sic
)
by this Honourable Court pertaining to service and time limits be
condoned and that the application be heard as urgent in terms
of Rule
6(12).
2.
That the applicant is granted the powers to institute action and/or
file an application as
advised.
3.
That the Registrar of Deeds is stay (
sic
) from transferring
the farm:
REMAINING EXTENT OF
THE FARM GEWONNE 494, DISTRICT THEUNISSEN, FREE STATE PROVINCE
EXTENT 85,4198
HECTARES
HELD BY DEED OF
TRANSFER T11[…]
into the name of Mr Nicky
de Klerk, any entity represented by Mr Nicky de Klerk and/or any
other entity or person.
4.
That Mr Donovan Majiedt, appointed liquidator of Full Circle Projects
Twenty CC, with Registration
Number 199[…] in liquidation and
the Master of the High Court, Mmabatho is (
sic
) ordered to
produce full disclosure and copies of all documentation needed by the
applicant under case number M000090/2020.
5.
That paragraph 3 above is stayed for a period of thirty (30) days
after receiving the documentation
referred to in paragraph 4 above,
for all the applicants to issue and service summons against all the
interesting parties to cancel
the offer accepted by the first
respondent made by the second respondent.
6.
That the first to fifth respondents pay the costs of this
application, only if opposed. That
any other party opposing this
application be ordered to pay the costs, jointly and separately (
sic
)
with the first respondent, the one pay the other be absolved.
7.
That paragraph 1 to 7 (
sic
) be made an interim Court Order and
that any interested parties be called upon to give reasons on or
before the 12
th
of August 2021 why this order not be made
a final (
sic
).”
[5]
In terms of the counter-application the De Klerk Family Trust sought
the following relief:
“
1.
That leave be granted to the applicants in the counter-application to
join and bring the counter-application
against the abovementioned
second to fifth respondents in the counter-application.
2.
That condonation be granted for the failure by the applicants in the
counter-application
to comply with the time periods stipulated in
paragraph 2 of the order issued by the court on 16 September 2021….
3.
That it be declared that the lease agreement which was concluded
between Tobias Casparus
du Plessis and Full Circle Projects Twenty CC
on 15 August 2018, a copy of which lease agreement is annexed as
Annexure “J”
to the first respondent’s founding
affidavit in the main application, is null and void; alternatively,
unenforceable.
4.
That the first respondent in the counter-application be ordered to
pay the costs of the counter-application.
5.
In the event that the counter-application is opposed by any of the
other parties to the counter-application
or the main application,
that such party be ordered to pay the costs of the
counter-application, jointly and severally with the
first respondent
in the counter-application.”
[6]
On 27 September 2022 I made the following order:
“
Ad
the procedural relief sought in the counter application:
1.
With regard to the leave sought by the
first and second applicants in the counter application, namely the
Trustees of the De Klerk
Family Trust, IT No: 138[…], the
following is granted:
1.1
The joinder of Lindiwe Florence Kaaba N.O, the co-liquidator of Full
Circle Projects Twenty CC, Registration
No. 199[…] [in
liquidation], in her official capacity as such as the third
respondent in the counter application; and
1.2
The joinder of Gert Louwrens Steyn de Wet N.O. and Gonasagree
Govender N.O, the provisional Trustees of the
Insolvent Estate of
Tobias Casparus du Plessis, ID No. 7[…], in their official
capacities as such as the fourth and fifth
respondents respectively
in the counter application; and
1.3
The institution of the counter application against the aforesaid
respondents, together with the first and
second respondents as cited
therein.
2.
Insofar as the Notice of Counter Application and the affidavit
thereto were not filed and
served timeously in accordance with the
Court Order of 16 September 2021, condonation is granted for such
non-compliance.
Ad
the main application:
3.
The main application is dismissed.
4.
The first applicant in the main application, Tobias Casparus du
Plessis, and the Trustees of the
Tafelkop Boerdery Trust, IT No:
220[…]in their official capacities as such, are to pay the
costs of the main application,
jointly and severally, payment by the
one, the other to be absolved.
Ad the counter
application:
5.
The lease agreement concluded between the first respondent in the
counter application,
Tobias Casparus du Plessis, and Full Circle
Projects Twenty CC on 15 August 2018, a copy of which lease agreement
is annexed to
the first respondent`s founding affidavit in the main
application as annexure “J”, is declared to be void
and/or unenforceable.
6.
The first respondent in the counter application, Tobias Casparus du
Plessis, is to
pay the costs of the counter application.
Ad the costs of the
application of the first applicant in the main application/first
respondent in the counter application to file
a further affidavit:
7.
The first applicant in the main application/first respondent in the
counter application,
Tobias Casparus du Plessis, is to pay the costs
of the aforesaid application.
Ad the costs of the
application of the sixth and seventh respondents in the main
application for leave to be joined as respondents
therein:
8.
The first applicant in the main application, Tobias Casparus du
Plessis, and the Trustees
of the Tafelkop Boerdery Trust, IT No:
220[…] in their official capacities as such, are to pay the
costs of the aforesaid
application, jointly and severally, payment by
the one, the other to be absolved.”
[7]
In terms of Mr Du Plessis` application for leave to appeal, as
supplemented, the grounds for the
application are the following:
“
1.
The court erred in ordering that the lease agreement concluded by and
between Tobias Casparus du
Plessis and Full Circle Projects Twenty CC
on 15 August 2018 was void and unenforceable. The court should
instead have found that
the lease agreement is binding on the
parties, remained extant until 1 September 2027, and that ‘
huur
gaat voor koop
’.
2.
The court erred by effectively holding that the impugned sale of the
farm ‘Gewonne’
was unassailable and that the first
applicant had no right, and/or
locus standi
to challenge the
sale and/or transfer thereof to the De Klerk Family Trust. The court
should stead have held that the first applicant
had, despite the
temporary provisional sequestration of his estate, retained a
reversionary interest in his (then) provisionally
sequestrated
estate, and therefore the right to sue for protection thereof, as
well as the required
locus standi
.
3.
In issuing the impugned order, the court erred by non-suiting Du
Plessis in both the main
and counter-application, on the ground of
him not having
locus standi
. Whereas there are reasonable
prospects that another court would come to the conclusion that
locus
standi
was not a matter of substantive law, but a procedural
matter where no hard and fast rules apply, and that a litigant’s
compromised
locus standi
(or even the absence thereof), was
capable of being cured, and
in casu
was so cured
ex post
facto
, alternatively, that the court should have cured same.
Insofar as Du Plessis, who was the first applicant in the main
application
(and also cited as the first respondent in the
counter-application) albeit that he may have lacked
locus standi
at the time the applications (main and counter) were launched, same
was cured,
firstly
, by the subsequent discharge of the
provisional sequestration order,
secondly
, the citation and
joinder of Du Plessis’ provisional trustees as parties in the
present law suit, and
thirdly
, the joint liquidators’
ostensible wilful inaction, or failure to have participated in the
proceedings, and/or their failure
to have opposed the
counter-application, despite having been joined, all of the papers
having been received by them, and despite
they therefore having had
knowledge of Du Plessis’ application directed at preserving
what could have been nothing other
than the reversionary rights in/to
his insolvent estate.
4.
The court erroneously failed to, in the exercise of its discretion,
hold that Du Plessis
did have
locus standi
; particularly
against the backdrop of the dictates of public policy, not hold that
Du Plessis had the right to institute the main
application, and to
defend the counter application (all the proceedings at hand),
particularly in the face of the contention that
the sale of the farm
Gewonne had taken place at odds with the law, because of the
existence of a binding lease agreement, as was
contended for by Du
Plessis;
5.
The court erred in holding that the lease agreement under
consideration was void and unenforceable,
whereas there is a
reasonable prospect that another court would hold that, the
conclusion of the lease agreement concerned, in
the absence of the
written consent of the Third Bondholder, constituted merely a breach
of the terms of the bond, or the underlying
credit agreement, in
contra distinction to rendering same void and unenforceable;
6.
The court erred in following the precedent enunciated in Oosthuizen v
Mari
[2015] JOL 32341
(GJ), whereas the learned Judge should instead
have held that the reasoning in the Oosthuizen-judgment was either
wrong, or that
the facts were distinguishable from the facts in the
present case, and that there are therefore reasonable prospects that
another
court would hold differently as to the validity of the lease;
7.
The court erred in applying the views expressed in Mars (The
Law of Insolvency), quoted
at [46] of her judgment, as if same were
the law of the Medes and Persians, whereas the judgment of Nieuwoudt
v The Master, (referred
to and quoted at [52] of the court's
judgment), clearly states (with reference to the joinder of an
insolvent's trustee in matters
where the insolvent's reversionary
rights are at stake):- "
Gewoonlik
word egter vereis dat
die kurator as party gevoeg moet word" (underling added.), and
reasonable prospects exist that another
court would subscribe to the
approach followed in the De Polo-judgement of Morris AJ, and the
approach in the judgments in Financial
Services Board & Another v
De Wet & Other
2002 (3) SA 525
CPD at 592A-E and 624D-I, and
Muller v De Wet N.O. & Others
1999 (2) SA 1024
WLD at 1027-1030,
to the effect that joinder was not necessarily required;
8.
The court erred in adjudicating the counter application on the basis
as if Du Plessis had neither
been cited, nor that he had filed
opposing papers, i.e., as if it was an unopposed application. A party
cannot blow hot and cold.
The applicants (trustees N.O. for the De
Klerk Family Trust) in the counter application (trustees N.O. for the
De Klerk Family
Trust) cited Du Plessis as a respondent, therefor it
did not lay in their hands to supinely sit by and have the counter
application
adjudicated as if Du Plessis was not cited, had no
interest in the matter (when his estate at the time of the hearing of
the applications
was no longer under provisional sequestration), and
contend that Du Plessis supposedly had no
locus standi
;
9.
The court erred in non-suiting Du Plessis on the basis of lack of
locus standi
,
particularly in the face of the. court’s own finding in
paragraph [66] of the judgment, that it would have been improper
of
the trustees of the De Klerk Family Trust not to have cited Du
Plessis, particularly not in circumstances where they later took
the
stance that he (Du Plessis) lacked
locus
standi
. The court erred by holding that
the joinder and citation of Du Plessis' trustees in the counter
application were insufficient
to cure any conceivable deficiency in
his
locus standi
in the main application, and that joinder and citation in the main
application was
also
required in order to have had effect of curing any lack of
locus
standi
. There are for the reasons afore
said reasonable prospects that another court would come to a
different conclusion, i.e. that any
compromise in Du Plessis'
locus
standi
, that may have existed, was in
fact cured, and had to have been so held.
10.
The court erred in failing to take into account the fact that, the
sale of bonded land subject to a lease
by private treaty, as opposed
to public auction, in the manner laid down in the de Jager judgement,
would have been at odds with
the prescripts of the law and therefor
open to being set aside as invalid in law. The court also erred in
ruling on Du Plessis'
locus standi
without reference to, or
taking into account the prima facie unlawfulness of the said sale of
the Farm Gewonne, because it was
a sale of bonded land in respect of
which there was a lease agreement, in which the principle of “
Huur
gaat voor koop
" had to be accounted for, and that a sale
other than by public auction would have been (and remained) at odds
with the law;
11.
The court erred in failing to give due consideration to the fact that
Du Plessis' erstwhile provisional trustees,
were joined and cited
before the court adjudicated the main and counter applications, and
that they, after having being joined
and while in possession of all
of the papers he papers, with full knowledge of the proceedings, and
the issues as ventilated in
the pleadings, in the words of the
judgement of De Polo '
washed their hands of the position
', and
that there are therefor reasonable prospects that another court would
find that that cured any conceivable lack of Du Plessis'
locus
standi
.
12. The court erred in
dealing with the issue of Du Plessis's right to have launched the
(main) application as if his standing was
to be determined on the
basis of "joinder", whereas same was to be dealt with on
the basis of
locus standi
instead, and that that lead to non-
suiting him, whereas there are reasonable prospects that another
court would come to a different
conclusion.
That there are therefor
reasonable prospects that another court would have upheld the
contentions of the Applicant, granted the
orders prayed for, and
dismissed the counter application with coast
Compelling reason for
leave to be granted:
It is contended that the
restoration of Du Plessis’ status after commencement of
proceedings, but before the hearing and adjudication
of the triable
issues, had an effect on the then pending litigation, that this
aspect of the case is a matter in respect of which
there seems to not
be judicial pronouncements, same is
res nova
, and as such,
constitutes a compelling reason why leave to appeal should be
granted, in as much as there is a reasonable prospect
that another
court would come to a different conclusion in the prevailing
circumstances, namely Du Plessis’ regaining of
his status and
control over his estate
pendent lite
, and warranted a finding
that he was not to be non-suited, and/or lacking
locus standi
in either the main and/or counter-application.”
[8]
Although it was stated in the application for leave to appeal that
the appeal is directed at the
whole of the judgment and order, it is
evident from the aforesaid grounds that it is in effect directed at
paragraphs 3, 4, 5 and
6 of the order and the judgment in relation
thereto. Mr De Koning also indicate same during the hearing of the
application.
[9]
I deem it apposite to deal with the two main grounds of the
application for leave to appeal.
Locus
standi
of Mr du
Plessis:
[10] It
is common cause that at the time when the main application and the
counter-application were issued on
6 July 2021 and 4 October 2021,
respectively, the estate of Mr du Plessis was subject to a
provisional sequestration order, which
order was issued on 18 March
2021. On 16 September 2021 First National Bank Limited (“FNB”)
intervened in the sequestration
application of the estate of Mr Du
Plessis, pursuant to which the initial order granted at the instance
of one Ms ACJ Joubert was
discharged and substituted by a provisional
sequestration order at the instance of FNB. However, the provisional
sequestration
order was discharged on 2 December 2021 as a result of
a settlement agreement concluded between Mr du Plessis and FNB, which
settlement
agreement included an agreement that the provisional
sequestration order was to be discharged against payment of the debt.
Therefore,
in terms of the said court order, dated 2 December 2021,
the provisional sequestration order dated 16 September 2021 was
discharged
and the settlement agreement was made an order of court.
[11] At
that stage the application and counter-application were still pending
between the parties.
[12] At
paragraphs [68] and [70] of my judgment I found that Mr du Plessis
did not have
locus standi
to have instituted the main
application and that he also did not have
locus standi
to have
opposed the counter-application. The grounds upon which Mr Du Plessis
is contesting these findings, are fully and clearly
set out in the
application for leave to appeal, already cited above.
[13]
From the aforesaid grounds, it is evident that there is also,
according to the Mr Du Plessis, a compelling
reason for leave to
appeal to be granted.
Applicable legal
principles pertaining to applications for leave to appeal:
[14]
Section 17(1)(a) of the Superior Courts Act, 10 of 2013 (“the
Act”) determines as follows:
“
1.
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that –
(a)(i) the
appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments
on the matter under consideration;
(b)
…”
[15] In
the judgment of
Acting National Director of Public Prosecutions
v Democratic Alliance
In Re
Democratic
Alliance v Acting National Director of Public Prosecutions
(19577/09) [2016] ZAGPPHZ 489 (24 June 2016) the court held at para
[25] of the judgment that the Act has raised the bar for granting
leave to appeal and in this regard it referred to the judgment of
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen and 18 Others
2014 JDR 2325 (LCC), in which judgment the court held as follows at
para [6]:
“
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The
former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion,
see
Van Heerden v Cronwright & Others
1985 (2) SA 342
(T) at 343H. The use of the word ‘would’
in the new statute indicates a measure of certainty that another
court will
differ from the court whose judgment is sought to be
appealed against.”
See also
Rohde v S
2020 (1) SACR 329
(SCA) at para [8] and
Fair-Trade Independent
Tobacco Association v President of the Republic of South Africa and
Another
(21688/2020) [2020] ZAGPPHC 311 (24 July 2020) at
para [4].
[16]
With regard to the test as to what constitutes “reasonable
prospects of success” the well-known
dictum
in
S v
Smith
2012 (1) SACR 567
(SCA) at para [7] is applicable:
"What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that
a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore,
the appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects
are not remote but
have a realistic chance of succeeding. More is required to be
established than that there is a mere possibility
of success, that
the case is arguable on appeal or that the case cannot be categorised
as hopeless. There must, in other words,
be a sound, rational
basis for the conclusion that there are prospects of success on
appeal."
[17]
In considering whether there is some other
compelling reason why the proposed appeal should be heard, an
important question of law may constitute such a compelling reason.
However, the merits thereof still need to be considered in deciding
whether to grant leave to appeal or not. In
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020 (5) SA 35
(SCA)
at para [2] the court determined as follows in this regard:
[2]
In order to be granted leave to appeal in terms of s 17(1)
(a)
(i)
and
s 17(1)
(a)
(ii) of the
Superior Courts Act an
applicant for leave must satisfy the court that the appeal would have
a reasonable prospect of success or that there is some other
compelling reason why the appeal should be heard. If the court is
unpersuaded of the prospects of success, it must still enquire
into
whether there is a compelling reason to entertain the appeal.
A
compelling reason includes an important question of law or a discrete
issue of public importance that will have an effect on future
disputes. But here too, the merits remain vitally important and are
often decisive.
Caratco must satisfy this court that it has met
this threshold.” (My emphasis)
[18] In
Talhado Fishing Enterprises (Pty) Ltd v Firstrand Bank Ltd t/a
First National Bank
(1104/2022) [2023] ZAECQBHC 16 (14 March
2023) the aforesaid principles were duly followed and applied:
“
4.
Irrespective of the
prospects of success, there may nevertheless exist a compelling
reason for the appeal to be heard. The subsection
does not contain an
exhaustive list of criteria, and each application for leave to appeal
must be decided on its own facts.
5.
It is the applicant
for leave to appeal must demonstrate that there is a compelling
reason why the appeal should be heard.
6.
…
7.
Other compelling
reasons include the fact that the decision sought to be appealed
against involves an important question of law
and that the
administration of justice, either generally or in the particular case
concerned, requires the appeal to be heard.
…
8.
As far as compelling
reasons are concerned, the merits of the prospects of success remain
vitally important and are often decisive.”
[19]
In terms of section 16(1)(a)(i) of the Act the proposed appeal lies
either to the Supreme Court
of Appeal or a full court of this
Division, depending on the direction issued in terms of section
17(6). Section 17(6)(a) of the
Act determines the following:
(
6)
(a)
If
leave is granted under subsection (2)
(a)
or
(b)
to
appeal against a decision of a Division as a court of first instance
consisting of a single judge, the judge or judges
granting leave must
direct that the appeal be heard by a full court of that Division,
unless they consider-
(i)
that the decision to be appealed involves a question of law of
importance, whether because of its general application or otherwise,
or in respect of which a decision of the Supreme Court of Appeal is
required to resolve differences of opinion; or
(ii)
that the administration of justice, either generally or in the
particular case, requires consideration by the Supreme Court
of
Appeal of the decision,
in
which case they must direct that the appeal be heard by the Supreme
Court of Appeal.”
Arguments
presented on behalf of the respective parties:
[20]
During the hearing of Mr De Koning`s arguments regarding the alleged
compelling reason to grant leave to
appeal, Mr De Koning indicated
that since the date of the filing of the supplementary grounds for
the application for leave to
appeal, they have come across a judgment
which in fact supports their contention as contained in the said
compelling reason to
grant such leave. He submitted that although it
was therefore technically not correct to have stated in the
supplementary grounds
that that there is “
no judicial
pronouncements
” on the issue, it remains a compelling
reason since it is an important question of law which has a
reasonable prospect that
it would succeed on appeal. Mr De Koning
then referred to and relied on the full court judgment of
Manison
v Oosterlaak
(1908) 29 NLR 515.
With reference to the said
judgment, Mr De Koning submitted that the refusal to issue a final
order on the return day of a provisional
sequestration order (
rule
nisi
) and the consequent setting aside of the provisional
sequestration order, restores the position of the person concerned
retrospectively,
as though he was never sequestrated.
[21]
Mr De Koning further indicated that the only other judgment they were
able to find during their research
in which the reasoning was the
closest to that in the
Oosterlaak
-judgment,
is the judgment of
Sirioupoulos
v Tzerefos
1979 (3) SA 1197
(OPA) at 1204 G to 1205 B. I will return to this
judgment.
[22]
The finding in the
Oosterlaak
-judgment
on which Mr De Koning relied during the said
hearing appears at 517 of the judgment:
“
I
quite agree that if the order for provisional sequestration had not
been set aside then every act which was done during its pendency
by
the insolvent, as if he was a free agent, was absolutely invalid by
reason of sections 25, 26 and 51 of the Insolvency Law.
All the cases
which have been cited only goes to emphasize this point: that after
an order for provisional sequestration has been
made the debtor’s
estate becomes vested in the Master and the debtor is deprived of any
right or power to deal with his own
estate in any shape or form. The
proviso to Section 15, however, provides that (see Section 15). I
think these words are as wide
as they can possibly be… they
cover every sort of right that the debtor could possibly have. The
words ‘or any right
of such person’ cover everything, and
there could be no meaning in the proviso if it was merely to relate
to something done
by the debtor, before the order of provisional
sequestration was made, as suggested by Mr Tatham. It can relate only
to what was
done by the debtor after the order of provisional
sequestration. It clearly means that which would otherwise have been
invalid
and illegal, in terms of the Insolvency Law, is to be
considered and judged of as if such provisional order of
sequestration had
never been made. The debtor is put back in the same
position as he was before the order, and any act done by him during
the provisional
insolvency becomes legalized and made good. ….”
[23]
Counsel for the liquidators and the De Klerk Family Trust,
respectively, both indicated that they had been
caught off guard
since they had not been advised prior to the hearing of the
application for leave to appeal that Mr De Koning
will be relying on
the said judgment.
[24]
After hearing further arguments, during which the said counsel
indicated that they would like an opportunity
to properly study the
said judgment in order to reply thereto, I granted the request and
certain dates were agreed upon on which
the respective parties were
to file written heads of argument (no written heads of argument had
been filed for purposes of the
application for leave to appeal)
pertaining to the particular judgment and the issue raised therein.
All three parties duly complied
with the arrangement regarding the
filing of the such heads of argument.
[25]
Both Mr Zietsman and Mr Pienaar indicated in their respective heads
of argument that they had been unable
to obtain a copy of Law 47 of
1887, which contains the said section 15 which was dealt with in the
Oosterlaak
-judgment, within the restricted time periods
within which their respective heads of argument had to be filed.
However, they indicated
that from the context of the applicable
finding made in the
Oosterlaak
-judgment they were able
to conclude and submit that the finding made was based on a proviso
to section 15 of Law 47 of 1887. They
further submitted that since
the
Insolvency Act, 24 of 1936
, repealed all previous insolvency
laws, and the prevailing
Insolvency Act, Act
24 of 1936, does not
contain a similar provision, the finding in the
Oosterlaak
-judgment
is no longer applicable.
[26]
Mr Zietsman further
submitted that the
Oosterlaak
-judgment
is in any event distinguishable from the present matter. In this
regard Mr Zietsman referred to the reason and circumstances
which led
to the discharge of the provisional order of sequestration in the
Oosterlaak
-judgment,
as opposed to the present matter where Mr Du Plessis paid the
creditor who obtained the provisional order of sequestration
against
him in terms of an agreement between them, which agreement included
the discharge of the sequestration order against payment
of the debt.
[27]
In his subsequent heads of argument Mr De Koning indicated that there
is a further judgment of the full court
of the Natal Division, by the
same Judge and between the same parties, the citation of which is
1908 NLR 479
, in which the following was stated at 480 of the
judgment:
“
The
matter now comes before us for a final order of sequestration; and we
have, in terms of
section 15
of the Insolvency Law, to say whether
the provisional order should be made final. It does not seem possible
to say whether the
debtor is in an insolvent condition or not, until
we know whether the claim of the petitioning creditor founded on a
provisional
judgment obtained in the Magistrate's Court, which the
debtor seeks to set aside, is a good one. The matter has not been
heard,
and so long as the provisional order of sequestration is in
force the debtor cannot bring his action in the Magistrate's Court to
determine whether the amount in question is due to the petitioning
creditor. In these circumstances I think that the court is entitled
to exercise the discretion which it has under
section 15
of the
Insolvency Law which says that ‘… the court may for
sufficient cause make no order and 'may dismiss the summons
and
petition and supersede the 'provisional order for sequestration'."
[28]
Mr De Koning, in his heads of argument, further dealt with
sections
10
,
11
(1),
12
and
150
of the
Insolvency Act and
relied on the
following additional case law:
1.
Sirioupoulos v Tzerefos
1979 (3) SA 1197
(OPA) at 1204
G to 1205 B [referred to earlier]:
As
die voorlopige sekwestrasiebevel 'n aldus beperkte werking het
wanneer dit gevolg word deur 'n finale sekwestrasiebevel, kan
dit
skaars van aard verander omdat dit later blyk dat dit nie deur
so 'n bevel gevolg word nie. Die oorweging dat die voorlopige
sekwestrasiebevel in so 'n geval deur 'n Hofbevel spesifiek
"vernietig" moet word spreek ook nie van 'n andersoortige
aard nie. Selfs as die voorlopige bevel uitgewerk is op die tydstip
wanneer die beslissing omtrent 'n finale sekwestrasiebevel
gevel
word, het dit sekere gevolge veroorsaak en sekere handelinge
geregverdig. Blote uitwerking of selfs formele "opheffing"
van die voorlopige bevel wat die toekoms betref, sou hierdie
resultate nie ongedaan maak nie. 'n Bevel ter vernietiging van die
voorlopige bevel is om daardie rede nodig. Die vernietigingsbevel sou
die regsgevolge wat reeds ingetree het van hul grondslag
ontneem
alhoewel handelinge wat op die voorlopige bevel berus, weens die
oorweging dat ‘onregmatigheid’ van optrede
beoordeel word
volgens die posisie tydens verrigting van die handeling, nie
sonder meer as ‘onregmati’ aangemerk
sou kon word nie.
Vernietiging van die voorlopige sekwestrasiebevel sou meebring dat
die vestiging van bates in die Meester ongedaan
gemaak word sonder
die noodsaak van enige lewering ter oordrag van eiendomsreg en sou bv
die respondent in staat stel om daarna
te verklaar dat hy nie
voorheen gesekwestreer was nie. Die vernietiging van die voorlopige
bevel is nodig om 'n grondslag vir restitusie
(in die breedste sin
van die woord) van die gevolge van die voorlopige sekwestrasiebevel
te lê.”
2.
Ex Parte Beach Hotel: Amanzimtoti (Pty) Ltd
1988 (3) SA
435
WLD at 438 F – H:
“
Our
modern sequestration procedure requires an order for 'provisional
sequestration'
(s 10
of the
Insolvency Act 24 of 1936
).
Simultaneously a second order must be made
(s 11)
, viz a
rule
nisi
calling
upon the debtor to show cause why his estate should not be
'sequestrated finally'. On the return date a third order
is made. If
sequestration is not ordered, the order creating provisional
sequestration must be 'set aside'. See the wording of
s 12(1).
The
rule is not 'discharged'. Alternatively, final sequestration is
ordered. The rule is not 'confirmed'. See
Sirioupoulos
v Tzerefos
1979
(3) SA 1197 (O)
at
1203, 1204. The rule
nisi
does
not even
call
for the showing of cause why the rule should not be 'confirmed'.”
3.
MV Snow Delta Discount Tonnage Ltd v Serva Ship Ltd
1996 (4) SA 1234
(C) at 1235 B – D [which was confirmed in
MV
Snow Delta Discount Tonnage Ltd v Serva Ship Ltd
2000 (4) SA
746
(SCA) at 751 G – 752 D]:
“
The
effect of the setting aside of the attachment by Foxcroft J earlier
today was analogous to the attachment having been unsuccessfully
sought today for the first time. The grant of leave to appeal does
not, in my view, revive the order which had earlier been granted
ex
parte
.
The
view I hold corresponds with that which has prevailed for over a
quarter of a century in this Division. (See
S
A B Lines (Pty) Ltd v Cape Tex Engineering Works (Pty) Ltd
1968
(2) SA 535 (C)
.) Thereafter the Full Bench of the Orange Free
State Division of this Court reached a similar conclusion in
Sirioupoulos
v Tzerefos
1979
(3) SA 1197
(O)
.”
[29] Mr
De Koning consequently contended as follows at paragraph 5 of his
heads of argument:
“
In
sum, although sections 10, 11, 12 and 150 of the Act do not
eo
nominee
, contain words or a phrase
identical to, or even similar to the above referred to portion of
Section 15 of the Law of 47 of 1887,
as demonstrated at the hand of
the above excerpts from the Act and more recent
jurisprudence
,
refusal to issue a final order on the return date of the
rule
nisi
, and setting aside of the
provisional sequestration order restores the position of the person
concerned so that as if he was never
sequestrated…..”
[30]
Mr De Koning therefore submitted that at the date of hearing of the
main application and the counter-application,
the applicant had
locus
standi
to have launched and prosecuted the main application and
to have opposed the counter-application. He further submitted that
the
applicant, insofar as may have been required, also had the rights
pertaining to ratification available.
[31]
Mr De Koning emphatically indicated that Mr Du Plessis is not
abandoning the other grounds of the application
for leave to appeal.
In this regard he,
inter alia,
specifically referred to
paragraphs 7, 8, 9, 11 and 12 and repeated his arguments advanced
during the hearing of the main application
and the
counter-application, specifically again with reference to the
judgment of
De Polo and Another v Dreyer and Others
1991
(2) SA 164
(WLD).
[32]
Mr De Koning therefore submitted that there are reasonable prospects
that another court would come to a different
conclusion regarding the
locus standi
of Mr Du Plessis, both with regard to the ground
referred to as the compelling reason and also the other stated
grounds of the
application for leave to appeal in respect of the
locus standi
issue.
[33]
Mr Zietsman pointed out that an appeal lies against an order/orders
of a court and not against the reasons
for the order/orders. In this
regard he referred to the judgment in
Baliso
v Firstrand Bank Ltd t/a Wesbank
2017 (1) SA 292
(CC)
at para [8], which indeed states as much. He persisted with his
submission that my finding regarding Mr Du Plessis` lack of
locus
standi
is
unassailable, but submitted that even if it was to be found by a
court of appeal that I erred and that Mr Du Plessis did have
the
necessary
locus
standi
,
such a finding will make no difference to the orders I made, more
specifically in relation to the main application. In this regard
Mr
Zietsman referred to the requirements for an interlocutory interdict
and submitted that Mr Du Plessis failed to make out a proper
case
with regard to any of the four requirements. He submitted that Mr Du
Plessis failed to even cross the hurdle of the first
requirement,
namely “a
prima
facie right
though
open to some doubt”, since Mr Du Plessis relied on the lease
contract for purposes thereof, whereas it is evident that
the lease
agreement is void and/or unenforceable.
The
validity of the lease agreement:
[34]
It is common cause that Mr Du Plessis and Full Circle concluded a
lease agreement pertaining to the farm
“Gewonne 494”
which farm was at the time owned by Full Circle. It is further common
cause that a Continuing Covering
Bond was registered as a third
mortgage bond over the said farm by the Registrar of Deeds in favour
of FNB. It is furthermore common
cause that contrary to clause 3.3 of
the third mortgage bond FNB did not, prior thereto, consent in
writing to the conclusion of
the lease agreement. Clause 3.3 reads as
follows:
“
The
mortgagor shall not mortgage or in any way alienate or further
encumber the mortgaged property, or any part thereof, nor shall
the
mortgagor let or give up occupation of the mortgaged property or any
part thereof without the prior written consent of the
mortgagee.”
[35]
In the counter-application the De Klerk Family Trust contended that
the said lease agreement is null and
void due to the non-compliance
with clause 3.3 of the mortgage bond.
[36]
I found accordingly; namely, that the lease agreement is void and/or
unenforceable due to the aforesaid reason
and I granted the relief in
the counter-application in respect thereof.
[37]
Mr De Koning dealt with the grounds of the application for leave to
appeal in respect of the counter-application.
He again emphasized,
with reference to paragraph 6 thereof, that I erred to have followed
the judgment of
Oosthuizen v Mari
[2015] JOL 32341
(GJ)
and that I should have found that the failure to have complied with
clause 3.3 of the third mortgage bond, merely constituted
a breach of
the relevant term of the bond as oppose to resulting in the lease
agreement being void and unenforceable.
[38]
Mr De Koning submitted that due to the fact that I erred in relation
to my finding regarding the lack of
locus standi
of Mr Du
Plessis, I further erred in having adjudicated the
counter-application on an unopposed basis. He submitted that had I
not erred in relation to the
locus standi
of Mr Du Plessis and
considered the counter-application on a proper opposed basis, the
counter-application could and should not
have been granted. Mr De
Koning therefore submitted that considering the prospects of success
on appeal on the issue of the
locus standi
of Mr Du Plessis,
there are also reasonable prospects that another court would come to
a different conclusion regarding the counter-application,
when same
is to be adjudicated based on all the facts and not on an unopposed
basis.
[39]
Mr Pienaar, however, submitted that although I stated that I was to
determine the counter-application on
an unopposed basis, I in fact
dealt with the common cause facts, which facts, considering that they
were common cause, included
the version of Mr Du Plessis. He
therefore submitted that even should the appeal succeed on the
locus
standi
issue, it would not impact upon the correctness of my
finding that the lease agreement is void and/or unenforceable. Mr
Pienaar
consequently submitted that Mr Du Plessis does not have a
reasonable prospect that a court of appeal would find differently.
[40]
Mr Pienaar furthermore submitted that even should I grant leave to
appeal with regard to the main application,
it should not necessarily
follow that leave is also to be granted in respect of the
counter-application, since each of the two
applications constitutes a
distinct application in which different, substantive relief was being
sought.
Considerations
and conclusions:
[41]
I have given due and proper consideration to all the arguments
presented to me, as well as the case law I
was referred to.
Prima
facie
it does seem to me that the
Oosterlaak-
judgment(s)
were probably based on the relevant section 15 of Law 47 of 1887
which was applicable in Natal at the time (and most
probably not even
in the Free State at the time as correctly pointed out by Mr
Zietsman). However, having said that, the sections
of the Act and the
further case law which Mr De Koning is relying upon, especially the
judgment of
Sirioupoulos v Tzerefos
(in which matter
the said section 15 was not applicable at all), do appear to provide
support to or at least a basis for his submissions
regarding the
alleged retrospective restoration of a person`s status when a
provisional sequestration order is discharged and set
aside.
[42]
The distinction which Mr Zietsman drew between the reasons for the
discharging of the applicable provisional
sequestration orders,
would, in my view, not necessarily have an impact upon the
determination of the legal consequences of the
discharging and
setting aside of a provisional sequestration order in relation to the
issue at hand.
[43]
It goes without saying that the aforesaid is indeed a very important
legal question which is also of public
importance and which
constitutes a compelling reason as intended in section 17(1)(a)(ii)
of the Act and which, in my view, carries
reasonable prospects of
success as described in
S v Smith
,
supra,
and to the extent as required by the Act and the relevant case law.
[44]
Mr De Koning did raise the aforesaid argument during the
adjudication of the main application and the counter-application.
However, at that stage he did not have any case law available to
support his submissions, nor did he argue it to the extent he
did
during the application for leave to appeal. It therefore does not
constitute a new legal question which has only now been raised
for
the first time. In addition, since the said is actually to be
determined on the common cause facts, it in any event falls squarely
within the following
dictum
stated in
Minister
of Justice and Constitutional Development and Others v Southern
Africa Litigation Centre and Others
2016 (3) SA 317
(SCA) at para [24]:
[24]
That is not to say that merely because the High Court determines an
issue of public importance it must grant leave to appeal.
The merits
of the appeal remain vitally important and will often be decisive.
Furthermore, where the purpose of the appeal is to
raise fresh
arguments that have not been canvassed before the High Court,
consideration must be given to whether the interests
of justice
favour the grant of leave to appeal. It has frequently been said by
the Constitutional Court that it is undesirable
for it as the highest
court of appeal in South Africa to be asked to decide legal issues as
a court of both first and last instance.
That is equally true of this
court. But there is another consideration.
It is that if a point
of law emerges from the undisputed facts before the court it is
undesirable that the case be determined without
considering that
point of law. The reason is that it may lead to the case being
decided on the basis of a legal error on the part
of one of the
parties in failing to identify and raise the point at an appropriate
earlier stage. But the court must be
satisfied that the
point truly emerges on the papers, that the facts relevant to the
legal point have been fully canvassed and
that no prejudice will be
occasioned to the other parties by permitting the point to be raised
and argued.
” (My emphasis)
[45]
In addition to the aforesaid argument in respect of the
locus
standi
of Mr Du Plessis, Mr De Koning also raised further valid
submissions as contained in the other grounds of the application for
leave
to appeal, which are also not without merit either. Although I
have considered same duly and thoroughly in my judgment, I am not
able to state that these further submissions regarding the
locus
standi
of Mr Du Plessis, do not carry a reasonable prospect that
a different court would come to a different conclusion than what I
did.
[46]
Therefore, in my view, leave to appeal is to be granted in respect of
my finding regarding Mr Du Plessis`
lack of
locus standi.
The facts and the applicable issues in the main application and the
counter-application are, in my view, very intertwined.
My finding
regarding Mr Du Plessis’ lack of
locus standi
had a
profound impact on both applications alike. Therefore, the said leave
to appeal is to be granted in respect of both the main
application
and the counter-application.
[47]
My finding in relation to the lack of Mr Du Plessis`
locus standi
had an essential impact on my approach regarding the
determination of the issue in respect of the validity of the lease
agreement,
both in respect of the main application and the
counter-application. As with the
locus standi
issue, the
validity of the lease agreement is an essential element and a
determining factor of both applications. Although I indeed
dealt with
the common cause facts in relation thereto in the
counter-application, as pointed out by Mr Pienaar, the fact remains
that there are in addition thereto, a number of facts in dispute
between the parties regarding the validity of the lease agreement
and
the impact thereof on the sale agreement. These facts were raised by
Mr Du Plessis, the De Klerk Family Trust and the liquidators,
respectively, in both the application and counter-application, but
which facts I did not consider due to my finding regarding the
locus
standi
aspect.
[48]
Should the appeal be successful on the
locus standi
aspect and
these facts are then indeed to be considered by the court of appeal,
I cannot find that there is not a reasonable prospect
that the court
of appeal would make a different finding to mine regarding the
validity of the lease agreement.
[49]
My view that leave is also to be granted in respect of this issue, is
fortified by the fact that Mr De Koning,
during the hearing of the
application and the counter-application, made use of an example in
support of his contention that the
lease agreement is valid, which
was to the effect that:
1.
C cannot attack the validity of a contract concluded between A and B,
to which C was not
a party, and/or
2.
If B concludes an agreement with C, which contract constitutes a
breach of an earlier concluded
contract between B and A to which C
was not a party, C cannot attack the validity of his contract with B
based on B`s breach of
contract with A.
[50]
The aforesaid examples are to be read in conjunction with case law
such as:
1.
Letsing
Diamonds Ltd v JCI Ltd and Others; Trinity Asset
Management (Pty) Ltd and Others v Investec Bank
Ltd and
Others
2007
(5) SA 564
(W), which judgment dealt with two applications, at paras
[19], [23] – [26] & [63] – [64].
2.
Letsing
Diamonds Ltd v JCI Ltd and Others
2009 (4) SA 58
(SCA),
which set aside the judgment in 1 above, but not with regard to the
general principles highlighted above. See also the dissenting
judgment at para [23].
3.
Trinity
Asset Management (Pty) Ltd and Others v Investec Bank Ltd and Others
2009 (4)
SA 89
SCA, which reversed the judgment in 1 above, but also not with
regard to the aforesaid highlighted principles. See also the
dissenting
judgment at para [52].
4.
Prevance Bonds (Pty) Ltd v
Voltex (Pty) Ltd
(58/2022) [2023]
ZASCA 40; [2023] 2 All Sa 587 (SCA) (31 March 2023) at para [22].
[51] I
do take cognisance of the fact that the liquidators are also parties
to the application and the counter-application,
that they “stand
in the shoes of Full Circle”, who was a party to the Third
General Bond and the lease agreement and
that the liquidators also
dispute the validity of the agreement. The impact thereof, if any,
will however be decided by the court
of appeal.
[52]
L
eave to appeal is
therefore, in my view, also to be granted in respect of my finding
pertaining to the validity of the lease agreement,
both in respect of
the main application and the counter application.
[53]
From the totality of the aforesaid facts, legal principles and
principles enunciated in case law, I am of
the view that section
17(6)(a) of the Act is applicable and that I consequently must direct
that the appeal is to be heard by the
Supreme Court of Appeal.
Costs:
[54]
The parties are
ad idem
that with regard to the wasted costs
of 3 March 2023, no order to costs is to be made.
[55]
With regard to the application for leave to appeal, the parties are
also
ad idem
that the usual order that such costs are to be
costs in the appeal, is to be made.
Order:
[56] I
make the following order:
1.
Leave is granted to the first applicant in the main application/the
first respondent in the
counter-application, Mr Du Plessis, to appeal
to the Supreme Court of Appeal against paragraphs 3, 4, 5 and 6 of
the order and
the judgment in relation thereto, issued and delivered
by Van Zyl, J under the abovementioned case number, pertaining to
both the
main application and the counter-application.
2.
No order as to costs in respect of the wasted costs of 13 March 2023
3.
The costs of the application for leave to appeal, with the exclusion
of the aforesaid costs,
are costs in the appeal, which costs are to
include the costs of two counsel where so employed and the costs
occasioned by the
drafting of the heads of argument.
C.
VAN ZYL, J
On
behalf of the applicant in the leave to appeal application/ first
applicant in the main application/first respondent in
the
counter-application (Mr Du Plessis):
Adv
LW de Koning SC
Assisted
by:
Adv
J Lubbe
Instructed
by
:
EG
Cooper Majiedt Inc.
BLOEMFONTEIN
On
behalf of the respondents in the leave to appeal application/
first respondent in the main application/second and third
respondents in the counter-application (Mr Majiedt N.O. & Ms
Kaaba N.O.):
Adv
P Zietsman SC
Instructed
by:
Hendré
Conradie Inc.
(Rossouws
Attorneys)
BLOEMFONTEIN
On
behalf of the respondents in the leave to appeal application/
sixth and seventh respondents in the main application/first
and
second applicants in the counter-application (Mr De Klerk N.O. &
Ms De Klerk N.O.):
Adv
CD Pienaar
Instructed
by:
Symington
& de Kok
BLOEMFONTEIN